<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 15, 1998
-------------
Merrill Lynch & Co., Inc.
-------------------------------------------
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1-7182 13-2740599
- ----------------------------------------------------------------------------------------------------
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
</TABLE>
<TABLE>
<S> <C>
World Financial Center, North Tower, New York, New York 10281-1220
- -------------------------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (212) 449-1000
--------------
________________________________________________________________________________
(Former name or former address, if changed since last report.)
<PAGE>
Item 5. Other Events
- ------ -------------
Exhibits are filed herewith in connection with the Registration Statement
on Form S-3 (File No. 333-44173) filed by Merrill Lynch & Co., Inc. ("ML & Co.")
with the Securities and Exchange Commission covering Senior Debt Securities
issuable under an indenture dated as of April 1, 1983, as amended and restated,
between ML & Co. and The Chase Manhattan Bank (the "Indenture"). ML & Co. will
issue $500,000,000 aggregate principal amount of 6% Notes due July 15, 2005 and
$700,000,000 aggregate principal amount of 6 1/2% Notes due July 15, 2018 under
the Indenture. The exhibits consist of the forms of Notes and an opinion of
counsel relating thereto.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
- ------ -------------------------------------------------------------------
EXHIBITS
(4) Instruments defining the rights of
security holders, including indentures.
(a) Form of Merrill Lynch & Co., Inc.'s 6% Notes due
July 15, 2005
(b) Form of Merrill Lynch & Co., Inc.'s 6 1/2% Notes
due July 15, 2018
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the 6% Notes
due July 15, 2005 and 6 1/2% Notes due July 15, 2018
(including consent for inclusion of such opinion in
this report and in Merrill Lynch & Co., Inc.'s
Registration Statement relating to such Notes).
2
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
------------------------------
(Registrant)
By: /s/ Theresa Lang
------------------------
Theresa Lang
Treasurer
Date: July 15, 1998
3
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED JULY 15, 1998
COMMISSION FILE NUMBER 1-7182
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
(4) Instruments defining the rights of
security holders, including indentures.
(a) Form of Merrill Lynch & Co., Inc.'s
6% Notes due July 15, 2005
(b) Form of Merrill Lynch & Co., Inc.'s
6 1/2% Notes due July 15, 2018
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating
to the 6% Notes due July 15, 2005 and
6 1/2% Notes due July 15, 2018
(including consent for inclusion of such opinion
in this report and in Merrill Lynch & Co., Inc.'s
Registration Statements relating to such Notes).
<PAGE>
Exhibit (4)(a)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO MERRILL LYNCH & CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-
CUSIP 590188 JE9 $500,000,000
MERRILL LYNCH & CO., INC.
6% Note due July 15, 2005
Merrill Lynch & Co., Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
herein referred to), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of FIVE HUNDRED MILLION DOLLARS
($500,000,000) on July 15, 2005 and to pay interest thereon at a rate of 6% per
annum from July 15, 1998, or from the most recent date in respect of which
interest has been paid or duly provided for, semiannually on January 15 and July
15 in each year (each, an "Interest Payment Date"), commencing January 15, 1999,
and at Maturity, until the principal hereof is paid or duly made available for
payment. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the June 30 or December 31 (whether or not a Business
Day) next preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for on any Interest Payment
Date, shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, as more fully provided in such Indenture.
Except as otherwise set forth below, payment of the principal of and the
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
This Note is one of the series of 6% Notes due July 15, 2005 (the "Notes").
Interest on the Notes will be computed and paid on the basis of a 360-day
year of twelve 30-day months.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest on the Notes, such Additional Amounts as are
necessary in order that the net payment by the Company or a paying agent of the
principal of and interest on the Notes to a holder who is a non-United States
person (as defined below), after deduction for any present or future tax,
assessment or other governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in the Notes
to be then due and payable; provided, however, that the foregoing obligation to
pay Additional Amounts shall not apply:
<PAGE>
(1) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the holder if the holder is
an estate, trust, partnership or corporation, or a person holding a power
over an estate or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having had a permanent establishment
in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled foreign
corporation with respect to the United States or a corporation that
has accumulated earnings to avoid United States federal income tax;
(d) being or having been a "10-percent shareholder" of the
Company as defined in section 871 (h) (3) of the United States
Internal Revenue Code or any successor provision; or
(e) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any holder that is not the sole beneficial owner of the Note,
or a portion thereof, or that is a fiduciary or partnership, but only to
the extent that a beneficiary or settlor with respect to the fiduciary, a
beneficial owner or member of the partnership would not have been entitled
to the payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or distributive
share of the payment;
(3) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the failure of the holder or any
other person to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States of the holder or beneficial owner of such
Note, if compliance is required by statute, by regulation of the United
States Treasury Department or by an applicable income tax treaty to which
the United States is a party as a precondition to exemption from such tax,
assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is
imposed otherwise than by withholding by the Company or a paying agent from
the payment;
(5) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth
or personal property tax or similar tax, assessment or other governmental
charge;
(7) to any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of or interest
on any Note, if such payment can be made without such withholding by any
other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
Except as specifically provided herein, the Company shall not be required
to make any payment with respect to any tax, assessment or other governmental
charge imposed by any government or a political subdivision or taxing authority
thereof or therein.
The term "United States" means the United States of America (including the
States and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction, "United States person" means any
individual who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia (other than a
partnership that is not treated as a United States person
2
<PAGE>
under any applicable Treasury regulations), any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in the Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
United States persons prior to such date that elect to continue to be treated as
United States persons will also be a United States person. "Non-United States
person" means a person who is not a United States person.
The Company may vary or terminate the appointment of any of its paying
agencies, and may appoint additional paying agencies, but the Company will, as
long as any of the Notes remain listed on the Luxembourg Stock Exchange and the
Luxembourg Stock Exchange so requires, maintain a paying agent having offices in
Luxembourg. So long as any of the Notes remain listed on the Luxembourg Stock
Exchange, notices will be given to holders of Notes by publication at least once
in a daily newspaper of general circulation in Luxembourg.
This Note is one of a duly authorized issue of Securities of the Company,
issued and to be issued under an Indenture, dated as of April 1, 1983, as
amended and restated (herein called the "Indenture"), between the Company and
The Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Notes, and the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Notes are not subject to redemption by the Company prior to maturity,
provided, however, if, as a result of any change in, or amendment to, the laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein), or any change
in, or amendments to, an official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after July 8, 1998, the Company becomes
or, based upon a written opinion of independent counsel selected by the Company,
will become obligated to pay Additional Amounts as described herein, then the
Company may, at its option, redeem, as a whole, but not in part, the Notes on
not less than 30 nor more than 60 days prior notice, at a redemption price equal
to 100% of their principal amount, together with interest accrued but unpaid
thereon to the date fixed for redemption.
The Notes are not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66-2/3% in aggregate principal amount of
the Securities at the time Outstanding, as defined in the Indenture, of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of each series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company duly executed
by, the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
3
<PAGE>
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
hereof, the Notes are exchangeable for a like aggregate principal amount of
Notes in authorized denominations as requested by the Holder surrendering the
same. If (x) any Depository is at any time unwilling or unable to continue as
Depository and a successor depository is not appointed by the Company within 60
days, (y) the Company executes and delivers to the Trustee a Company Order to
the effect that this Note shall be exchangeable or (z) an Event of Default has
occurred and is continuing with respect to the Notes, this Note shall be
exchangeable for Notes in definitive form of like tenor and of an equal
aggregate principal amount, in denominations of $1,000 and integral multiples
thereof. Such definitive Notes shall be registered in such name or names as the
Depository shall instruct the Trustee. If definitive Notes are so delivered,
the Company may make such changes to the form of this Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture, but not in
this Note, shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this Note
shall not be entitled to any benefits under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: July 15, 1998
CERTIFICATE OF AUTHENTICATION MERRILL LYNCH & CO., INC.
This is one of the Securities
of the series designated
therein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
4
<PAGE>
Exhibit (4)(b)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO MERRILL LYNCH & CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R-
CUSIP 590188 JF6 $700,000,000
MERRILL LYNCH & CO., INC.
6 1/2% Note due July 15, 2018
Merrill Lynch & Co., Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
herein referred to), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of SEVEN HUNDRED MILLION DOLLARS
($700,000,000) on July 15, 2018 and to pay interest thereon at a rate of 6 1/2%
per annum from July 15, 1998, or from the most recent date in respect of which
interest has been paid or duly provided for, semiannually on January 15 and July
15 in each year (each, an "Interest Payment Date"), commencing January 15, 1999,
and at Maturity, until the principal hereof is paid or duly made available for
payment. The interest so payable and punctually paid or duly provided for on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the June 30 or December 31 (whether or not a Business
Day) next preceding such Interest Payment Date. Any such interest which is
payable, but is not punctually paid or duly provided for on any Interest Payment
Date, shall forthwith cease to be payable to the registered Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, as more fully provided in such Indenture.
Except as otherwise set forth below, payment of the principal of and the
interest on this Note will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
This Note is one of the series of 6 1/2% Notes due July 15, 2018 (the
"Notes").
Interest on the Notes will be computed and paid on the basis of a 360-day
year of twelve 30-day months.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest on the Notes, such Additional Amounts as are
necessary in order that the net payment by the Company or a paying agent of the
principal of and interest on the Notes to a holder who is a non-United States
person (as defined below), after deduction for any present or future tax,
assessment or other governmental charge of the United States or a political
subdivision or taxing authority thereof or therein, imposed by withholding with
respect to the payment, will not be less than the amount provided in the Notes
to be then due and payable; provided, however, that the foregoing obligation to
pay Additional Amounts shall not apply:
1
<PAGE>
(1) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the holder if the holder is
an estate, trust, partnership or corporation, or a person holding a power
over an estate or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having had a permanent establishment
in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled foreign
corporation with respect to the United States or a corporation that
has accumulated earnings to avoid United States federal income tax;
(d) being or having been a "10-percent shareholder" of the
Company as defined in section 871 (h) (3) of the United States
Internal Revenue Code or any successor provision; or
(e) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any holder that is not the sole beneficial owner of the Note,
or a portion thereof, or that is a fiduciary or partnership, but only to
the extent that a beneficiary or settlor with respect to the fiduciary, a
beneficial owner or member of the partnership would not have been entitled
to the payment of an Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or distributive
share of the payment;
(3) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the failure of the holder or any
other person to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States of the holder or beneficial owner of such
Note, if compliance is required by statute, by regulation of the United
States Treasury Department or by an applicable income tax treaty to which
the United States is a party as a precondition to exemption from such tax,
assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is
imposed otherwise than by withholding by the Company or a paying agent from
the payment;
(5) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth
or personal property tax or similar tax, assessment or other governmental
charge;
(7) to any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of or interest
on any Note, if such payment can be made without such withholding by any
other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
Except as specifically provided herein, the Company shall not be required
to make any payment with respect to any tax, assessment or other governmental
charge imposed by any government or a political subdivision or taxing authority
thereof or therein.
The term "United States" means the United States of America (including the
States and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction, "United States person" means any
individual who is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, any state thereof or the District of Columbia (other than a
partnership that is not treated as a United States person
2
<PAGE>
under any applicable Treasury regulations), any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in the Treasury
regulations, certain trusts in existence on August 20, 1996, and treated as
United States persons prior to such date that elect to continue to be treated as
United States persons will also be a United States person. "Non-United States
person" means a person who is not a United States person.
The Company may vary or terminate the appointment of any of its paying
agencies, and may appoint additional paying agencies, but the Company will, as
long as any of the Notes remain listed on the Luxembourg Stock Exchange and the
Luxembourg Stock Exchange so requires, maintain a paying agent having offices in
Luxembourg. So long as any of the Notes remain listed on the Luxembourg Stock
Exchange, notices will be given to holders of Notes by publication at least once
in a daily newspaper of general circulation in Luxembourg.
This Note is one of a duly authorized issue of Securities of the Company,
issued and to be issued under an Indenture, dated as of April 1, 1983, as
amended and restated (herein called the "Indenture"), between the Company and
The Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders of the
Notes, and the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Notes are not subject to redemption by the Company prior to maturity,
provided, however, if, as a result of any change in, or amendment to, the laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein), or any change
in, or amendments to, an official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after July 8, 1998, the Company becomes
or, based upon a written opinion of independent counsel selected by the Company,
will become obligated to pay Additional Amounts as described herein, then the
Company may, at its option, redeem, as a whole, but not in part, the Notes on
not less than 30 nor more than 60 days prior notice, at a redemption price equal
to 100% of their principal amount, together with interest accrued but unpaid
thereon to the date fixed for redemption.
The Notes are not subject to any sinking fund.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than 66-2/3% in aggregate principal amount of
the Securities at the time Outstanding, as defined in the Indenture, of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all
Securities of each series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the face hereof, the transfer of this Note may be registered on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the Borough
of Manhattan, The City of New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company duly executed
by, the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
3
<PAGE>
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the face
hereof, the Notes are exchangeable for a like aggregate principal amount of
Notes in authorized denominations as requested by the Holder surrendering the
same. If (x) any Depository is at any time unwilling or unable to continue as
Depository and a successor depository is not appointed by the Company within 60
days, (y) the Company executes and delivers to the Trustee a Company Order to
the effect that this Note shall be exchangeable or (z) an Event of Default has
occurred and is continuing with respect to the Notes, this Note shall be
exchangeable for Notes in definitive form of like tenor and of an equal
aggregate principal amount, in denominations of $1,000 and integral multiples
thereof. Such definitive Notes shall be registered in such name or names as the
Depository shall instruct the Trustee. If definitive Notes are so delivered,
the Company may make such changes to the form of this Note as are necessary or
appropriate to allow for the issuance of such definitive Notes.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture, but not in
this Note, shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this Note
shall not be entitled to any benefits under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: July 15, 1998
CERTIFICATE OF AUTHENTICATION MERRILL LYNCH & CO., INC.
This is one of the Securities
of the series designated
therein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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<PAGE>
EXHIBIT (5) & (23)
July 15, 1998
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called the
"Company"), certified by the Secretary of State of the State of Delaware. We
are familiar with the corporate proceedings had in connection with the proposed
issuance and sale by the Company to the Underwriters named in the Terms
Agreement referred to below, pursuant to an Underwriting Agreement dated
September 8, 1997 (the "Underwriting Agreement"), between the Company and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MLPF&S"), as supplemented by a Terms Agreement, dated July 8, 1998 (the "Terms
Agreement") among the Company, MLPF&S and the other underwriters named therein
(the "2005 Underwriters"), relating to $500,000,000 aggregate principal amount
of the Company's 6% Notes due July 15, 2005 (the "Notes due 2005"), and as
further supplemented by a Terms Agreement, dated July 8, 1998 (the "2018 Terms
Agreement", and together with the 2005 Terms Agreement, the "Terms
<PAGE>
Agreements") among the Company, MLPF&S and the other underwriters named therein
(the "2018 Underwriters", and together with the 2005 Underwriters, the
"Underwriters") relating to $700,000,000 aggregate principal amount of the
Company's 6 1/2% Notes due July 15, 2018 (which, together with the Notes due
2005, are referred to herein as the "Notes"). We have also examined a copy of
the Indenture between the Company and The Chase Manhattan Bank, as Trustee,
dated as of April 1, 1983, as amended and restated (the "Indenture"), and the
Company's Registration Statement on Form S-3 (File No. 333-44173) relating to
the Notes (the "Registration Statement").
Based upon the foregoing and upon such further investigation as we deemed
relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware.
2. The Notes have been duly and validly authorized by the Company and when
the Notes have been duly executed and authenticated in accordance with the terms
of the Indenture and delivered against payment therefor as set forth in the
Underwriting Agreement, as supplemented by the Terms Agreements, the Notes will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws relating to or affecting creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).
2
<PAGE>
We consent to the filing of this opinion as an exhibit to the Registration
Statement and as an exhibit to the Current Report of the Company on Form 8-K
dated July 15, 1998.
Very truly yours,
/s/ Brown & Wood LLP
3
