<PAGE>
As filed with the Securities and Exchange Commission on August 17, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________
FORM S-8
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENTS
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)
_________
MERRILL LYNCH & CO., INC. 401(k) SAVINGS & INVESTMENT PLAN
(Full title of the plan)
_________
Mark B. Goldfus, Esq.
Merrill Lynch & Co., Inc.
222 Broadway - 17th Floor
New York, New York 10038
(212) 670-0180
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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 unit offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.33-1/3 per share, (including
Preferred Stock Purchase Rights)
(1).............. 20,000,000 $65.21875 $1,304,375,000 $ 362,616.25
Interests in the
Plan............... (3) N/A N/A N/A
====================================================================================================================================
</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) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the Plan that are covered
by this Registration Statement. The filing fee is 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 11, 1999.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminable amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus to be
delivered pursuant to this Registration Statement will be a combined prospectus
relating also to (i) the shares registered hereunder and (ii) to the remaining
unsold shares and Plan interests registered under Registration Statement No.
333-41425. The Post-Effective Amendments shall become effective upon filing in
accordance with Section 8(c) of the Securities Act of 1933 and Rule 464
promulgated thereunder.
================================================================================
<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 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 25, 1998, Quarterly Reports on Form 10-Q
for the quarters ended March 26, 1999 and June 25, 1999, and Current Reports on
Form 8-K dated December 28, 1998, January 19, 1999, February 17, 1999, February
18, 1999, February 22, 1999, February 23, 1999, March 26, 1999, April 13, 1999,
April 19, 1999, May 26, 1999, May 28, 1999 (two reports), June 1, 1999, June 25,
1999, July 12, 1999, July 13, 1999, July 21, 1999, and August 4, 1999 (two
reports) filed pursuant to Section 13 of the Securities Exchange Act of 1934
(the "Exchange Act"), are incorporated by reference herein.
The Annual Report of the Merrill Lynch & Co., Inc. 401(k) Savings &
Investment Plan (the "Plan"), on Form 11-K for the fiscal year ended December
25, 1998, filed pursuant to Section 15(d) of the Exchange Act, is 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.
Not Applicable.
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 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 in connection with such
action,
2
<PAGE>
suit or proceeding if he acted in good faith and in a manner he 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 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"), and to Exhibit 3 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
September 25, 1998 (File No. 1-7182)).
4(b) By-Laws of the Company, effective as of July 26, 1999.
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)).
5(a) Opinion of Brown & Wood LLP.
5(b) Internal Revenue Service determination letter that the Plan is
qualified under Section 401 of the Internal Revenue Code (incorporated
by reference to Exhibit 5(b) to the Company's Registration Statement on
Form S-8 (File No. 333-00863).
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5(a)).
23(b) Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on page 5).
3
<PAGE>
Item 9. Undertakings
The undersigned registrants hereby undertake:
(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 unless the information required
to be included in such post-effective amendment is contained in
periodic reports filed by the registrants pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement;
(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 unless the information required to
be included in such post-effective amendment is contained in periodic
reports filed by the registrants pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(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 Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, (and, with
respect to the Plan, each filing of the Plan's Annual Report pursuant to Section
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 therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the provisions referred to in Item 6 of
this registration statement, or otherwise, the registrants have 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 registrants of expenses incurred
or paid by a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of their counsel the
matter has been settled by a controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
The Company. 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 17th day
of August, 1999.
MERRILL LYNCH & CO., INC.
By /s/ DAVID H. KOMANSKY
----------------------------
David H. Komansky
(Chairman of the Board and
Chief Executive Officer)
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David H. Komansky, E. Stanley O'Neal and
Stephen L. Hammerman, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and to each Registration Statement amended hereby, 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 17th day of August, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ DAVID H. KOMANSKY Chairman of the Board, Chief
- --------------------------------------------------------- Executive Officer and Director
(David H. Komansky)
/s/ E. STANLEY O'NEAL Executive Vice President and
- --------------------------------------------------------- Chief Financial Officer (Principal
(E. Stanley O'Neal) Financial Officer)
/s/ AHMASS L. FAKAHANY
- --------------------------------------------------------- Senior Vice President and Controller
(Ahmass L. Fakahany) (Principal Accounting Officer)
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
---------- -----
<S> <C>
/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/ 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)
</TABLE>
6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Administrative Committee (the persons who administer the employee benefit plan)
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 17th day of August, 1999.
MERRILL LYNCH & CO., INC.
401(k) SAVINGS & INVESTMENT PLAN
/s/ KENNETH J. REIFERT
--------------------------------------
Kenneth J. Reifert
(Chairman, Administrative Committee)
7
<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"), and to Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended September 25, 1998
(File No. 1-7182)).
+ 4(b) By-Laws of the Company, effective as of July 26, 1999.
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)).
+ 5(a) Opinion of Brown & Wood LLP.
5(b) Internal Revenue Service determination letter that the Plan is
qualified under ection 401 of the Internal Revenue Code
(incorporated by reference to Exhibit 5(b) to the Company's
Registration Statement on Form S-8 (File No. 333-00863) .
+ 15 Letter re: unaudited interim financial information.
+ 23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5
(a)).
+ 23(b) Consent of Deloitte & Touche LLP.
+ 24 Power of Attorney (included on Page 5).
+ Filed herewith.
</TABLE>
8
<PAGE>
EXHIBIT 4(b)
BY-LAWS
OF
MERRILL LYNCH & CO., INC.
-------------------
Effective July 26, 1999
<PAGE>
INDEX
to
BY-LAWS
of
MERRILL LYNCH & CO., INC.
PAGE
ARTICLE I - OFFICES...........................................................1
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.......................................1
Section 2. Special Meetings.....................................1
Section 3. Notice of, and Business at, Meetings.................1
Section 4. Waiver of Notice.....................................3
Section 5. Organization.........................................3
Section 6. Inspectors of Election...............................3
Section 7. Stockholders Entitled to Vote........................4
Section 8. Quorum and Adjournment...............................4
Section 9. Order of Business....................................4
Section 10. Vote of Stockholders.................................4
Section 11. Shares Entitled to More or Less Than One Vote........5
ARTICLE III - BOARD OF DIRECTORS
Section 1. Election and Term....................................5
Section 2. Qualification........................................5
Section 3. Number...............................................5
Section 4. General Powers.......................................6
Section 5. Place of Meetings....................................6
Section 6. Organization Meetings................................6
Section 7. Regular Meetings.....................................6
Section 8. Special Meetings; Notice and Waiver of Notice........6
Section 9. Organization of Meetings.............................7
Section 10. Quorum and Manner of Acting..........................7
Section 11. Voting...............................................7
Section 12. Action without a Meeting.............................7
<PAGE>
PAGE
Section 13. Resignations.........................................8
Section 14. Removal of Directors.................................8
Section 15. Vacancies............................................8
Section 16. Directors' Compensation..............................8
ARTICLE IV - COMMITTEES
Section 1. Constitution and Powers..............................8
Section 2. Place of Meetings....................................9
Section 3. Meetings; Notice and Waiver of Notice................9
Section 4. Organization of Meetings.............................9
Section 5. Quorum and Manner of Acting..........................9
Section 6. Voting..............................................10
Section 7. Records.............................................10
Section 8. Vacancies...........................................10
Section 9. Members' Compensation...............................10
Section 10. Emergency Management Committee......................10
ARTICLE V - THE OFFICERS
Section 1. Officers - Qualifications...........................11
Section 2. Term of Office; Vacancies...........................11
Section 3. Removal of Elected Officers.........................11
Section 4. Resignations........................................11
Section 5. Officers Holding More Than One Office...............11
Section 6. The Chairman of the Board...........................11
Section 7. The President.......................................12
Section 8. The Vice Chairmen of the Board......................12
Section 9. The Executive Vice Presidents.......................13
Section 10. The Senior Vice Presidents..........................13
Section 11. The Vice Presidents.................................13
Section 12. The Secretary.......................................13
Section 13. The Treasurer.......................................13
Section 14. Additional Duties and Authority.....................14
Section 15. Compensation........................................14
<PAGE>
PAGE
ARTICLE VI - STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates...................................14
Section 2. Transfers of Stock...................................14
Section 3. Lost Certificates....................................14
Section 4. Determination of Holders of Record for Certain
Purposes.............................................15
ARTICLE VII - CORPORATE SEAL
Section 1. Seal.................................................15
Section 2. Affixing and Attesting...............................15
ARTICLE VIII - MISCELLANEOUS
Section 1. Fiscal Year..........................................15
Section 2. Signatures on Negotiable Instruments.................15
Section 3. References to Article and Section Numbers and to the
By-Laws and the Certificate of Incorporation.........16
ARTICLE IX - AMENDMENTS.......................................................16
<PAGE>
BY-LAWS
OF
MERRILL LYNCH & CO., INC.
--------------
ARTICLE I.
OFFICES
Merrill Lynch & Co., Inc. (hereinafter called the "Corporation") may
establish or discontinue, from time to time, such offices and places of business
within or without the State of Delaware as the Board of Directors may deem
proper for the conduct of the Corporation's business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the holders of
shares of such classes or series of stock as are entitled to notice thereof and
to vote thereat pursuant to the provisions of the Certificate of Incorporation
(hereinafter called the "Annual Meeting of Stockholders") for the purpose of
electing directors and transacting such other business as may come before it
shall be held in each year at such time, on such day and at such place, within
or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 2. Special Meetings. In addition to such meetings as are
provided for by law or by the Certificate of Incorporation, special meetings of
the holders of any class or series or of all classes or series of the
Corporation's stock may be called at any time by the Board of Directors pursuant
to a resolution adopted by the affirmative vote of a majority of the entire
Board of Directors and may be held at such time, on such day and at such place,
within or without the State of Delaware, as shall be designated by the Board of
Directors.
Section 3. Notice of, and Business at, Meetings.
a. Notice. Except as otherwise provided by law, written notice of
each meeting of stockholders shall be given either by delivering a notice
personally or mailing a notice to each stockholder of record entitled to vote
thereat. If mailed, the notice shall be directed to the stockholder in a
postage-prepaid envelope at his address as it appears on the stock books of the
Corporation unless, prior to the time of mailing, he shall have filed with the
Secretary a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed to the address designated in
such request. Notice of each meeting of stockholders shall be in such form as
is approved by the Board of Directors and shall state the purpose or purposes
for which the meeting is
<PAGE>
2
called, the date and time when and the place where it is to be held, and shall
be delivered personally or mailed not more than sixty (60) days and not less
than ten (10) days before the day of the meeting. Except as otherwise provided
by law, the business which may be transacted at any special meeting of
stockholders shall consist of and be limited to the purpose or purposes so
stated in such notice. The Secretary or an Assistant Secretary or the Transfer
Agent of the Corporation shall, after giving such notice, make an affidavit
stating that notice has been given, which shall be filed with the minutes of
such meeting.
b. Business. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corporation who (i)
is a stockholder of record on the date of the giving of the notice provided for
in this Section 3(b) and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) complies with the
notice procedures set forth in this Section 3(b).
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received by the Secretary of the Corporation not less
than fifty (50) days prior to the date of the annual meeting of stockholders;
provided, that in the event that less than 60 days' notice or prior public
- --------
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which such notice
of the date of the annual meeting was mailed or such public disclosure of the
date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
<PAGE>
3
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 3(b), provided, however, that, once
-------- -------
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 3(b) shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought before the
annual meeting in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
Section 4. Waiver of Notice. Whenever notice is required to be given
under any provision of law or of the Certificate of Incorporation or the By-
Laws, a waiver thereof in writing or by telegraph, cable or other form of
recorded communication, signed by the person entitled to notice, whether before
or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except when the person attends such meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of stockholders need be specified in any waiver of notice unless so
required by the Certificate of Incorporation.
Section 5. Organization. The Chairman of the Board shall act as
chairman at all meetings of stockholders at which he is present, and as such
chairman shall call such meetings of stockholders to order and preside thereat.
If the Chairman of the Board shall be absent from any meeting of stockholders,
the duties otherwise provided in this Section 5 of Article II to be performed by
him at such meeting shall be performed at such meeting by the officer prescribed
by Section 6 of Article V. The Secretary of the Corporation shall act as
secretary at all meetings of the stockholders, but in his absence the chairman
of the meeting may appoint any person present to act as secretary of the
meeting.
Section 6. Inspectors of Election. a. The Chairman of the Board shall,
in advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The Chairman of the Board may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
b. The inspectors shall: (1) ascertain the number of shares
outstanding and the voting power of each; (2) determine the shares represented
at a meeting and the validity of proxies and ballots; (3) count all votes and
ballots; (4) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(5) certify their determination of the number of
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4
shares represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties.
Section 7. Stockholders Entitled to Vote. The Board of Directors may
fix a date not more than sixty (60) days nor less than ten (10) days prior to
the date of any meeting of stockholders, as a record date for the determination
of the stockholders entitled to notice of and to vote at such meeting and any
adjournment thereof, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to notice of, and to vote at, such meeting and any adjournment thereof,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board of Directors establishes such record date. The Secretary
shall prepare and make or cause to be prepared and made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, arranged in alphabetical order and showing the
address of each such stockholder and the number of shares registered in the name
of each such stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place, specified in the notice of the meeting, within the city where the meeting
is to be held, or, if not so specified, at the place where the meeting is to be
held. Such list shall be produced and kept at the time and place of the meeting
during the whole time thereof, and subject to the inspection of any stockholder
who may be present.
Section 8. Quorum and Adjournment. Except as otherwise provided by
law or by the Certificate of Incorporation, the holders of a majority of the
shares of stock entitled to vote at the meeting present in person or by proxy
without regard to class or series shall constitute a quorum at all meetings of
the stockholders. In the absence of a quorum, the holders of a majority of such
shares of stock present in person or by proxy may adjourn any meeting, from time
to time, until a quorum shall be present. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called. No notice of any adjourned
meeting need be given other than by announcement at the meeting that is being
adjourned, provided that if the adjournment is for more than thirty (30) days,
or if after the adjournment a new record date is fixed for the adjourned
meeting, then a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. Order of Business. The order of business at all meetings
of stockholders shall be as determined by the chairman of the meeting.
Section 10. Vote of Stockholders. Except as otherwise required by
law or by the Certificate of Incorporation or by the By-Laws, all action by
stockholders shall be taken at a stockholders' meeting. Every stockholder of
record, as determined pursuant to Section 7 of this Article II, and who is
entitled to vote, shall, except as otherwise expressly provided in the
Certificate of Incorporation with respect to any class or series
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5
of the Corporation's capital stock, be entitled at every meeting of the
stockholders to one vote for every share of stock standing in his name on the
books of the Corporation. Every stockholder entitled to vote may authorize
another person or persons to act for him by proxy duly appointed by an
instrument in writing, subscribed by such stockholder and executed not more than
three (3) years prior to the meeting, unless the instrument provides for a
longer period. The attendance at any meeting of stockholders of a stockholder
who may theretofore have given a proxy shall not have the effect of revoking
such proxy. Election of directors shall be by written ballot but, unless
otherwise provided by law, no vote on any question upon which a vote of the
stockholders may be taken need be by ballot unless the chairman of the meeting
shall determine that it shall be by ballot or the holders of a majority of the
shares of stock present in person or by proxy and entitled to participate in
such vote shall so demand. In a vote by ballot each ballot shall state the
number of shares voted and the name of the stockholder or proxy voting. Except
as otherwise provided in Sections 14 and 15 of Article III or by the Certificate
of Incorporation, directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the election of directors. Except as otherwise provided by law or by the
Certificate of Incorporation, the affirmative vote of a majority of shares
present in person or represented by proxy at the meeting and entitled to vote on
the subject shall be the act of the stockholders.
Section 11. Shares Entitled to More or Less than One Vote. If any
class or series of the Corporation's capital stock shall be entitled to more or
less than one vote for any share, on any matter, every reference in the By-Laws
to a majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Election and Term. Except as otherwise provided by law or
by the Certificate of Incorporation, and subject to the provisions of Sections
13, 14 and 15 of this Article III, directors shall be elected at the Annual
Meeting of Stockholders to serve until the Annual Meeting of Stockholders in the
third year following their election and until their successors are elected and
qualify or until their earlier resignation or removal.
Section 2. Qualification. No one shall be a director who is not the
owner of shares of Common Stock of the Corporation. Acceptance of the office of
director may be expressed orally or in writing.
Section 3. Number. The number of directors may be fixed from time to
time by resolution of the Board of Directors but shall not be less than three
(3) nor more than thirty (30).
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6
Section 4. General Powers. The business, properties and affairs of
the Corporation shall be managed by, or under the direction of, the Board of
Directors, which, without limiting the generality of the foregoing, shall have
power to elect and appoint officers of the Corporation, to appoint and direct
agents, to grant general or limited authority to officers, employees and agents
of the Corporation to make, execute and deliver contracts and other instruments
and documents in the name and on behalf of the Corporation and over its seal,
without specific authority in each case, and, by resolution adopted by a
majority of the whole Board of Directors, to appoint committees of the Board of
Directors in addition to those appointed pursuant to Article IV hereof, the
membership of which may consist of one or more directors, and which may advise
the Board of Directors with respect to any matters relating to the conduct of
the Corporation's business. The Board of Directors may designate one or more
directors as alternate members of any committee, including those appointed
pursuant to Article IV hereof, who may replace any absent or disqualified member
at any meeting of the committee. In addition, the Board of Directors may
exercise all the powers of the Corporation and do all lawful acts and things
which are not reserved to the stockholders by law or by the Certificate of
Incorporation.
Section 5. Place of Meetings. Meetings of the Board of Directors may
be held at any place, within or without the State of Delaware, from time to time
designated by the Board of Directors.
Section 6. Organization Meeting. A newly elected Board of Directors
shall meet and organize, and also may transact any other business which might be
transacted at a regular meeting thereof, as soon as practicable after each
Annual Meeting of Stockholders, at the place at which such meeting of
stockholders took place, without notice of such meeting, provided a majority of
the whole Board of Directors is present. If such a majority is not present,
such organization meeting may be held at any other time or place which may be
specified in a notice given in the manner provided in Section 8 of this Article
III for special meetings of the Board of Directors, or in a waiver of notice
thereof.
Section 7. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as may be determined by resolution of the
Board of Directors and no notice shall be required for any regular meeting.
Except as otherwise provided by law, any business may be transacted at any
regular meeting of the Board of Directors.
Section 8. Special Meetings; Notice and Waiver of Notice. Special
meetings of the Board of Directors shall be called by the Secretary on the
request of the Chairman of the Board, the President or a Vice Chairman of the
Board, or on the request in writing of any three other directors stating the
purpose or purposes of such meeting. Notice of any special meeting shall be in
form approved by the Chairman of the Board, the President or a Vice Chairman of
the Board, as the case may be. Notices of special meetings shall be mailed to
each director, addressed to him at his residence or usual place of business, not
later than two (2) days before the day on which the meeting is to be held, or
shall be sent to him at such place by telegraph, cable or other form of recorded
communication or be delivered personally or by telephone, not later than the
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7
day before such day of meeting. Notice of any meeting of the Board of Directors
need not be given to any director if he shall sign a written waiver thereof
either before or after the time stated therein, or if he shall attend a meeting,
except when he attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any special meeting of the Board of Directors need be
specified in any notice or written waiver of notice unless so required by the
Certificate of Incorporation or by the By-Laws. Unless limited by law, by the
Certificate of Incorporation or by the By-Laws, any and all business may be
transacted at any special meeting.
Section 9. Organization of Meetings. The Chairman of the Board shall
preside at all meetings of the Board of Directors at which he is present. If
the Chairman of the Board shall be absent from any meeting of the Board of
Directors, the duties otherwise provided in this Section 9 of Article III to be
performed by him at such meeting shall be performed at such meeting by the
officer prescribed by Section 6 of Article V. If no such officer is present at
such meeting, one of the directors present shall be chosen by the members of the
Board of Directors present to preside at such meeting. The Secretary of the
Corporation shall act as the secretary at all meetings of the Board of
Directors, and in his absence a temporary secretary shall be appointed by the
chairman of the meeting.
Section 10. Quorum and Manner of Acting. Except as otherwise provided
by Section 6 of this Article III, at every meeting of the Board of Directors
one-third (1/3) of the total number of directors constituting the whole Board of
Directors shall constitute a quorum but in no event shall a quorum be
constituted by less than two (2) directors. Except as otherwise provided by law
or by the Certificate of Incorporation, or by Section 15 of this Article III, or
by Section 1 or Section 8 of Article IV, or by Section 3 of Article V, or by
Article IX, the act of a majority of the directors present at any such meeting,
at which a quorum is present, shall be the act of the Board of Directors. In
the absence of a quorum, a majority of the directors present may adjourn any
meeting, from time to time, until a quorum is present. No notice of any
adjourned meeting need be given other than by announcement at the meeting that
is being adjourned. Members of the Board of Directors or any committee thereof
may participate in a meeting of the Board of Directors or of such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation by a member of the Board of Directors in a meeting pursuant to
this Section 10 of Article III shall constitute his presence in person at such
meeting.
Section 11. Voting. On any question on which the Board of Directors
shall vote, the names of those voting and their votes shall be entered in the
minutes of the meeting if any member of the Board of Directors so requests at
the time.
Section 12. Action without a Meeting. Except as otherwise provided by
law or by the Certificate of Incorporation, any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a
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8
meeting, if prior to such action all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of Directors
or the committee.
Section 13. Resignations. Any director may resign at any time upon
written notice of resignation to the Corporation. Any resignation shall be
effective immediately unless a date certain is specified for it to take effect,
in which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary to make it effective, irrespective of whether
the resignation is tendered subject to such acceptance.
Section 14. Removal of Directors. Subject to the rights of the
holders of any series of Preferred Stock or any other class of capital stock of
the Corporation (other than the Common Stock) then outstanding, (i) any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause, by the affirmative vote of the holders of record of
outstanding shares representing at least 80% of the voting power of all the
shares of capital stock of the Corporation then entitled to vote generally in
the election of directors, voting together as a single class, and (ii) any
director may be removed from office at any time, but only for cause, by the
affirmative vote of a majority of the entire Board of Directors.
Section 15. Vacancies. Subject to the rights of the holders of any
series of Preferred Stock or any other class of capital stock of the Corporation
(other than the Common Stock) then outstanding, any vacancies in the Board of
Directors for any reason, including by reason of any increase in the number of
directors, shall, if occurring prior to the expiration of the term of office of
the class in which such vacancy occurs, be filled only by the Board of
Directors, acting by the affirmative vote of a majority of the remaining
directors then in office, although less than a quorum, and any directors so
elected shall hold office until the next election of the class for which such
directors have been elected and until their successors are elected and qualify.
Section 16. Directors' Compensation. Any and all directors may
receive such reasonable compensation for their services as such, whether in the
form of salary or a fixed fee for attendance at meetings, with expenses, if any,
as the Board of Directors may from time to time determine. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV.
COMMITTEES
Section 1. Constitution and Powers. The Board of Directors may, by
resolution adopted by affirmative vote of a majority of the whole Board of
Directors, appoint one or more committees of the Board of Directors, which
committees shall have such powers and duties as the Board of Directors shall
properly determine. Unless otherwise provided by the Board of Directors, no
such other committee of the Board of Directors shall be composed of fewer than
two (2) directors.
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9
Section 2. Place of Meetings. Meetings of any committee of the Board
of Directors may be held at any place, within or without the State of Delaware,
from time to time designated by the Board of Directors or such committee.
Section 3. Meetings; Notice and Waiver of Notice. Regular meetings of
any committee of the Board of Directors shall be held at such times as may be
determined by resolution either of the Board of Directors or of such committee
and no notice shall be required for any regular meeting. Special meetings of
any committee shall be called by the secretary thereof upon request of any two
members thereof. Notice of any special meeting of any committee shall be in
form approved by the Chairman of the Board, the President or a Vice Chairman of
the Board, as the case may be. Notices of special meetings shall be mailed to
each member, addressed to him at his residence or usual place of business, not
later than two (2) days before the day on which the meeting is to be held, or
shall be sent to him at such place by telegraph, cable or any other form of
recorded communication, or be delivered personally or by telephone, not later
than the day before such day of meeting. Neither the business to be transacted
at, nor the purpose of, any special meeting of any committee, need be specified
in any notice or written waiver of notice unless so required by the Certificate
of Incorporation or the By-Laws. Notices of any such meeting need not be given
to any member of any committee, however, if waived by him as provided in Section
8 of Article III, and the provisions of such Section 8 with respect to waiver of
notice of meetings of the Board of Directors shall apply to meetings of any
committee as well.
Section 4. Organization of Meetings. The most senior officer of the
Corporation present, if any be members of the committee, and, if not, the
director present who has served the longest as a director, except as otherwise
expressly provided by the Board of Directors or the committee, shall preside at
all meetings of any committee. The Secretary of the Corporation, except as
otherwise expressly provided by the Board of Directors, shall act as secretary
at all meetings of any committee and in his absence a temporary secretary shall
be appointed by the chairman of the meeting.
Section 5. Quorum and Manner of Acting. One-third (1/3) of the
members of any committee then in office shall constitute a quorum for the
transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present, shall be the act of such committee. In
the absence of a quorum, a majority of the members of any committee present, or,
if two or fewer members shall be present, any member of the committee present or
the Secretary, may adjourn any meeting, from time to time, until a quorum is
present. No notice of any adjourned meeting need be given other than by
announcement at the meeting that is being adjourned. The provisions of Section
10 of Article III with respect to participation in a meeting of a committee of
the Board of Directors and the provisions of Section 12 of Article III with
respect to action taken by a committee of the Board of Directors without a
meeting shall apply to participation in meetings of and action taken by any
committee.
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10
Section 6. Voting. On any question on which any committee shall vote,
the names of those voting and their votes shall be entered in the minutes of the
meeting if any member of such committee so requests.
Section 7. Records. All committees shall keep minutes of their acts
and proceedings, which shall be submitted at the next regular meeting of the
Board of Directors unless sooner submitted at an organization or special meeting
of the Board of Directors, and any action taken by the Board of Directors with
respect thereto shall be entered in the minutes of the Board of Directors.
Section 8. Vacancies. Any vacancy among the appointed members or
alternate members of any committee of the Board of Directors may be filled by
affirmative vote of a majority of the whole Board of Directors.
Section 9. Members' Compensation. Members of all committees may
receive such reasonable compensation for their services as such, whether in the
form of salary or a fixed fee for attendance at meetings, with expenses, if any,
as the Board of Directors may from time to time determine. Nothing herein
contained shall be construed to preclude any member of any committee from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 10. Emergency Management Committee. In the event that a
quorum of the Board of Directors cannot readily be convened as a result of
emergency conditions following a catastrophe or disaster, then all the powers
and duties vested in the Board of Directors shall vest automatically in an
Emergency Management Committee which shall consist of all readily available
members of the Board of Directors and which Committee shall have and may
exercise all of the powers of the Board of Directors in the management of the
business and affairs of the Corporation. Two members shall constitute a quorum.
Other provisions of these By-Laws notwithstanding, the Emergency Management
Committee shall call a meeting of the Board of Directors as soon as
circumstances permit, for the purpose of filling vacancies on the Board of
Directors and its committees and to take such other action as may be
appropriate; and if the Emergency Management Committee determines that less than
a majority of the members of the Board of Directors are available for service,
the Emergency Management Committee shall, as soon as practicable, issue a call
for a special meeting of stockholders for the election of directors. The powers
of the Emergency Management Committee shall terminate upon the convening of the
meeting of the Board of Directors above prescribed at which a majority of the
members thereof shall be present, or upon the convening of the above prescribed
meeting of stockholders, whichever first shall occur.
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11
ARTICLE V.
THE OFFICERS
Section 1. Officers - Qualifications. The elected officers of the
Corporation shall be a Chairman of the Board, a Secretary and a Treasurer and
may also include one or more Vice Chairmen of the Board, a President, one or
more Executive Vice Presidents, one or more Senior Vice Presidents and one or
more Vice Presidents. The elected officers shall be elected by the Board of
Directors. The Chairman of the Board, the President and each Vice Chairman of
the Board, shall be selected from the directors. Assistant Secretaries,
Assistant Treasurers and such other officers as may be deemed necessary or
appropriate may be appointed by the Board of Directors or may be appointed
pursuant to Section 6 of this Article V.
Section 2. Term of Office; Vacancies. So far as is practicable, all
elected officers shall be elected at the organization meeting of the Board of
Directors in each year, and except as otherwise provided in Sections 3 and 4,
and subject to the provisions of Section 6, of this Article V, shall hold office
until the organization meeting of the Board of Directors in the next subsequent
year and until their respective successors are elected and qualify or until
their earlier resignation or removal. All appointed officers shall hold office
during the pleasure of the Board of Directors and the Chairman of the Board. If
any vacancy shall occur in any office, the Board of Directors may elect or
appoint a successor to fill such vacancy for the remainder of the term.
Section 3. Removal of Elected Officers. Any elected officer may be
removed at any time, either for or without cause, by affirmative vote of a
majority of the whole Board of Directors, at any regular meeting or at any
special meeting called for the purpose and, in the case of any officer not more
senior than a Senior Vice President, by affirmative vote of a majority of the
whole committee of the Board of Directors so empowered at any regular meeting or
at any special meeting called for the purpose.
Section 4. Resignations. Any officer may resign at any time, upon
written notice of resignation to the Corporation. Any resignation shall be
effective immediately unless a date certain is specified for it to take effect,
in which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary to make it effective, irrespective of whether
the resignation is tendered subject to such acceptance.
Section 5. Officers Holding More Than One Office. Any officer may
hold two or more offices the duties of which can be consistently performed by
the same person.
Section 6. The Chairman of the Board. The Chairman of the Board shall
be the chief executive officer of the Corporation. He shall direct, coordinate
and control the Corporation's business and activities and its operating expenses
and capital expenditures, and shall have general authority to exercise all the
powers necessary for the chief executive officer of the Corporation, all in
accordance with basic policies established by and subject to the control of the
Board of Directors. He shall be
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12
responsible for the employment or appointment of employees, agents and officers
(except officers to be elected by the Board of Directors pursuant to Section 1
of this Article V) as may be required for the conduct of the business and the
attainment of the objectives of the Corporation, and shall have authority to fix
compensation as provided in Section 15 of this Article V. He shall have
authority to suspend or to remove any employee, agent or appointed officer of
the Corporation and to suspend for cause any elected officer of the Corporation
and, in the case of the suspension for cause of any such elected officer, to
recommend to the Board of Directors what further action should be taken. He
shall have general authority to execute bonds, deeds and contracts in the name
and on behalf of the Corporation. As provided in Section 5 of Article II, he
shall act as chairman at all meetings of the stockholders at which he is
present, and, as provided in Section 9 of Article III, he shall preside at all
meetings of the Board of Directors at which he is present. In the absence of the
Chairman of the Board, his duties shall be performed and his authority may be
exercised by the President, and, in the absence of the Chairman of the Board and
the President, such duties shall be performed and such authority may be
exercised by such officer as may have been designated by the most senior officer
of the Corporation who has made any such designation, with the right reserved to
the Board of Directors to make the designation or supersede any designation so
made.
Section 7. The President. The President, if any, shall be the chief
operating officer of the Corporation. He shall implement the general
directives, plans and policies formulated by the Chairman of the Board pursuant
to the By-Laws, in general shall have authority to exercise all powers delegated
to him by the Chairman of the Board and shall establish operating and
administrative plans and policies and direct and coordinate the Corporation's
organizational components, within the scope of the authority delegated to him by
the Board of Directors or the Chairman of the Board. He shall have general
authority to execute bonds, deeds and contracts in the name and on behalf of the
Corporation and responsibility for the employment or appointment of such
employees, agents and officers (except officers to be elected by the Board of
Directors pursuant to Section 1 of this Article V) as may be required to carry
on the operations of the business and authority to fix compensation of such
employees, agents and officers as provided in Section 15 of this Article V. He
shall have authority to suspend or to remove any employee or agent of the
Corporation (other than officers). As provided in Section 6 of this Article V,
in the absence of the Chairman of the Board, the President shall perform all the
duties and exercise the authority of the Chairman of the Board. In the absence
of the President, his duties shall be performed and his authority may be
exercised by the Chairman of the Board. In the absence of the President and the
Chairman of the Board, the duties of the President shall be performed and his
authority may be exercised by such officer as may have been designated by the
most senior officer of the Corporation who has made any such designation, with
the right reserved to the Board of Directors to make the designation or
supersede any designation so made.
Section 8. The Vice Chairmen of the Board. The several Vice Chairmen
of the Board, if any, shall perform such duties and may exercise such authority
as may from
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13
time to time be conferred upon them by the Board of Directors, the Chairman of
the Board or the President.
Section 9. The Executive Vice Presidents. The several Executive Vice
Presidents, if any, shall perform such duties and may exercise such authority as
may from time to time be conferred upon them by the Board of Directors, the
Chairman of the Board or the President.
Section 10. The Senior Vice Presidents. The several Senior Vice
Presidents, if any, shall perform such duties and may exercise such authority as
may from time to time be conferred upon them by the Board of Directors, the
Chairman of the Board, the President, any Vice Chairman of the Board or any
Executive Vice President.
Section 11. The Vice Presidents. The several Vice Presidents, if any,
shall perform such duties and may exercise such authority as may from time to
time be conferred upon them by the Board of Directors, the Chairman of the
Board, the President, any Vice Chairman of the Board or any Executive Vice
President.
Section 12. The Secretary. The Secretary shall attend to the giving
of notice of all meetings of stockholders and of the Board of Directors and
committees thereof, and, as provided in Section 5 of Article II and Section 9 of
Article III, shall keep minutes of all proceedings at meetings of the
stockholders and of the Board of Directors at which he is present, as well as of
all proceedings at all meetings of committees of the Board of Directors at which
he has served as secretary, and where some other person has served as secretary
thereto, the Secretary shall maintain custody of the minutes of such
proceedings. As provided in Section 2 of Article VII, he shall have charge of
the corporate seal and shall have authority to attest any and all instruments or
writings to which the same may be affixed. He shall keep and account for all
books, documents, papers and records of the Corporation, except those for which
some other officer or agent is properly accountable. He shall generally perform
all the duties usually appertaining to the office of secretary of a corporation.
In the absence of the Secretary, such person as shall be designated by the
Chairman of the Board shall perform his duties.
Section 13. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit the same in such
banks or other depositories as the Board of Directors or any officer or
officers, or any officer and agent jointly, thereunto duly authorized by the
Board of Directors, shall, from time to time, direct or approve. Except as
otherwise provided by the Board of Directors or in the Corporation's plan of
organization, the Treasurer shall keep a full and accurate account of all moneys
received and paid on account of the Corporation, shall render a statement of
accounts whenever the Board of Directors shall require, shall perform all other
necessary acts and duties in connection with the administration of the financial
affairs of the Corporation and shall generally perform all the duties usually
appertaining to the office of the treasurer of a corporation. Whenever required
by the Board of Directors, the Treasurer shall give bonds for the faithful
discharge of the duties of that office in such sums and with such sureties as
the Board of Directors shall
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14
approve. In the absence of the Treasurer, such person as shall be designated by
the President shall perform such duties.
Section 14. Additional Duties and Authority. In addition to the
foregoing specifically enumerated duties and authority, the several officers of
the Corporation shall perform such other duties and may exercise such further
authority as the Board of Directors may, from time to time, determine, or as may
be assigned to them by any superior officer.
Section 15. Compensation. Except as fixed or controlled by the Board
of Directors or otherwise, compensation of all officers and employees shall be
fixed by the Chairman of the Board, or by the President within the limits
approved by the Chairman of the Board, or by other officers of the Corporation
exercising authority granted to them under the plan of organization of the
Corporation.
ARTICLE VI.
STOCK AND TRANSFERS OF STOCK
Section 1. Stock Certificates. The capital stock of the Corporation
shall be represented by certificates signed by, or in the name of the
Corporation by, the Chairman of the Board, the President or a Vice Chairman of
the Board, and by the Secretary or an Assistant Secretary or by the Treasurer or
an Assistant Treasurer, and sealed with the seal of the Corporation. If such
stock certificate is countersigned by a Transfer Agent other than the
Corporation or its employee or by a Registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile, engraved or
printed. Such seal may be a facsimile, engraved or printed. In case any such
officer, Transfer Agent or Registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
Transfer Agent or Registrar before such certificate is issued by the
Corporation, it may nevertheless be issued by the Corporation with the same
effect as if such officer, Transfer Agent or Registrar had not ceased to be such
at the date of its issue. The certificates representing the capital stock of
the Corporation shall be in such form as shall be approved by the Board of
Directors.
Section 2. Transfers of Stock. Transfers of stock shall be made on
the books of the Corporation by the person named in the certificate, or by an
attorney lawfully constituted in writing, and upon surrender and cancellation of
a certificate or certificates for a like number of shares of the same class or
series of stock, duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, and with such proof of the authenticity of
the signatures as the Corporation or its agents may reasonably require and with
all required stock transfer tax stamps affixed thereto and canceled or
accompanied by sufficient funds to pay such taxes.
Section 3. Lost Certificates. In case any certificate of stock shall
be lost, stolen or destroyed, the Board of Directors, in its discretion, or any
officer or officers thereunto duly authorized by the Board of Directors, may
authorize the issue of a
<PAGE>
15
substitute certificate in place of the certificate so lost, stolen or destroyed;
provided, however, that, in each such case, the applicant for a substitute
certificate shall furnish evidence to the Corporation, which it determines in
its discretion is satisfactory, of the loss, theft or destruction of such
certificate and of the ownership thereof, and also such security or indemnity as
may be required by it.
Section 4. Determination of Holders of Record for Certain Purposes.
In order to determine the stockholders or other holders of securities entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of capital stock or other securities or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, not
more than sixty (60) days prior to the date of payment of such dividend or other
distribution or allotment of such rights or the date when any such rights in
respect of any change, conversion or exchange of stock or securities may be
exercised, and in such case only holders of record on the date so fixed shall be
entitled to receive payment of such dividend or other distribution or to receive
such allotment of rights, or to exercise such rights, notwithstanding any
transfer of any stock or other securities on the books of the Corporation after
any such record date fixed as aforesaid. No record date shall precede the date
on which the Board of Directors establishes such record date.
ARTICLE VII.
CORPORATE SEAL
Section 1. Seal. The seal of the Corporation shall be in the form of
a circle and shall bear the name of the Corporation and in the center of the
circle the words "Corporate Seal, Delaware" and the figures "1973".
Section 2. Affixing and Attesting. The seal of the Corporation shall
be in the custody of the Secretary, who shall have power to affix it to the
proper corporate instruments and documents, and who shall attest it. In his
absence, it may be affixed and attested by an Assistant Secretary, or by the
Treasurer or an Assistant Treasurer or by any other person or persons as may be
designated by the Board of Directors.
ARTICLE VIII.
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Corporation shall end
on the last Friday of December in each year and the succeeding fiscal year shall
begin on the day next succeeding the last day of the preceding fiscal year.
Section 2. Signatures on Negotiable Instruments. All bills, notes,
checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents and in such manner as, from time to
time, may be prescribed by resolution (whether general or special) of the Board
of Directors, or may be prescribed
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16
by any officer or officers, or any officer and agent jointly, thereunto duly
authorized by the Board of Directors.
Section 3. References to Article and Section Numbers and to the By-
Laws and the Certificate of Incorporation. Whenever in the By-Laws reference is
made to an Article or Section number, such reference is to the number of an
Article or Section of the By-Laws. Whenever in the By-Laws reference is made to
the By-Laws, such reference is to these By-Laws of the Corporation, as amended,
and whenever reference is made to the Certificate of Incorporation, such
reference is to the Certificate of Incorporation of the Corporation, as amended,
including all documents deemed by the General Corporation Law of the State of
Delaware to constitute a part thereof.
ARTICLE IX.
AMENDMENTS
The By-Laws may be altered, amended or repealed at any Annual Meeting
of Stockholders, or at any special meeting of holders of shares of stock
entitled to vote thereon, provided that in the case of a special meeting notice
of such proposed alteration, amendment or repeal be included in the notice of
meeting, by a vote of the holders of a majority of the shares of stock present
in person or by proxy at the meeting and entitled to vote thereon, or (except as
otherwise expressly provided in any By-Law adopted by the stockholders) by the
Board of Directors at any valid meeting by affirmative vote of a majority of the
whole Board of Directors.
The undersigned, duly qualified Secretary of Merrill Lynch & Co.,
Inc., a Delaware corporation, hereby certifies the foregoing to be a true and
complete copy of the By-Laws of the said Merrill Lynch & Co., Inc. in effect on
this date.
.........................................
Secretary
Dated:
<PAGE>
[Letterhead of Brown & Wood LLP] Exhibit 5 (a)
August 17, 1999
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 August 17,
1999 under the Securities Act of 1933, as amended, of a Registration Statement
on Form S-8 (the "Registration Statement") for the purpose of registering
20,000,000 shares of Common Stock, par value $1.33 1/3 per share (including
Preferred Stock Purchase Rights) (the "Common Stock") of Merrill Lynch & Co.,
Inc., together with such indeterminable amount of interests (the "Interests") in
the Merrill Lynch & Co., Inc. 401(k) Savings & Investment Plan (the "Plan") as
may be purchased with contributions under 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, (i) the
shares of Common Stock purchased with contributions under the Plan will be
legally issued, fully paid and nonassessable and (ii) the Interests, to the
extent such Interests vest to the benefit of the participants in the Plan, will
have been duly and validly authorized and will be valid Interests.
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
August 17, 1999
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 condensed
consolidated financial information of Merrill Lynch & Co., Inc. and subsidiaries
("Merrill Lynch") as of March 26, 1999 and June 25, 1999 and for the three-month
periods ended March 26, 1999 and March 27, 1998 and the three- and six-month
periods ended June 25, 1999 and June 26, 1998 as indicated in our reports dated
May 7, 1999 and August 6, 1999, respectively; because we did not perform an
audit, we expressed no opinion on that information. The financial information
as of and for the three-month period ended March 27, 1998 and the three- and
six-month periods ended June 26, 1998 gives retroactive effect to the merger of
Merrill Lynch and Midland Walwyn Inc., which has been accounted for as a
pooling-of-interests, as described in Note 1 to the condensed consolidated
financial statements included in your Quarterly Reports on Form 10-Q for the
quarters ended March 26, 1999 and June 25, 1999.
We are aware that such reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 26, 1999 and June
25, 1999, are incorporated by reference in this Registration Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
New York, New York
<PAGE>
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration Statement of
Merrill Lynch & Co., Inc. on Form S-8 related to the 401(k) Savings & Investment
Plan of our reports dated February 22, 1999 (which express an unqualified
opinion and which report on the consolidated financial statements includes an
explanatory paragraph for the change in accounting method for certain internal-
use software development costs to conform with Statement of Position 98-1),
appearing or incorporated by reference in the Annual Report on Form 10-K of
Merrill Lynch & Co., Inc. and subsidiaries for the year ended December 25, 1998,
and our report dated June 16, 1999 appearing in the Annual Report on Form 11-K
of Merrill Lynch & Co., Inc. 401(k) Savings & Investment Plan for the year ended
December 31, 1998.
/s/ Deloitte & Touche LLP
New York, New York
August 17, 1999
