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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
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. 2000 DEFERRED COMPENSATION PLAN
FOR A SELECT GROUP OF ELIGIBLE EMPLOYEES
(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>
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Title of securities Amount to Proposed maximum offering Proposed maximum aggregate Amount of
to be registered be registered price perobligation offering price(2) registration fee
====================================================================================================================================
<S> <C> <C> <C> <C>
Deferred Compensation $200,000,000 100% $200,000,000 $55,600.00
Obligations(1)
====================================================================================================================================
(1) The Deferred Compensation Obligations are unsecured obligations of Merrill Lynch & Co., Inc. to pay deferred compensation in the
future in accordance with the terms of the Merrill Lynch & Co., Inc. 2000 Deferred Compensation Plan for a Select Group of Eligible
Employees.
(2) Estimated solely for the purpose of determining the registration fee.
====================================================================================================================================
</TABLE>
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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.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date hereof and prior to the
termination of the offering of the securities registered pursuant to this
Registration Statement shall be deemed to be incorporated by reference into this
Registration Statement 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 of this Registration Statement 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.
Under the Merrill Lynch & Co., Inc. 2000 Deferred Compensation Plan for
a Select Group of Eligible Employees (the "Plan"), the Company will provide
eligible employees the opportunity to agree to the deferral of a specified
percentage of their cash compensation. The obligations of the Company under such
agreements (the "Obligations") will be unsecured general obligations of the
Company to pay the deferred compensation in the future in accordance with the
terms of the Plan, and will rank pari passu with other unsecured and
unsubordinated indebtedness of the Company from time to time outstanding.
However, because the Company is a holding company, the right of the Company, and
hence the right of creditors of the Company (including participants in the
Plan), to participate in any distribution of the assets of any subsidiary upon
its liquidation or reorganization or otherwise is necessarily subject to the
prior claims of creditors of the subsidiary, except to the extent that claims of
the Company itself as a creditor of the subsidiary may be recognized. In
addition, dividends, loans and advances from certain subsidiaries, including
Merrill Lynch, Pierce, Fenner & Smith Incorporated, to the Company are
restricted by net capital requirements under the Exchange Act, and under rules
of certain exchanges and other regulatory bodies.
The amount of compensation to be deferred by each participating
employee (each a "Participant") will be determined in accordance with the Plan
based on elections by each Participant. Each Obligation will be payable on a
date selected by each Participant in accordance with the terms of the Plan. The
Obligations will be indexed to one or more Benchmark Return Options individually
chosen by each Participant from a list of investment media. Each Participant's
Obligation will be adjusted to reflect the investment experience, whether
positive or negative, of the Selected Benchmark
2
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Return Options, including any appreciation or depreciation. The Obligations will
be denominated and be payable in United States dollars.
A Participant's right or the right of any other person to the
Obligations cannot be assigned, alienated, sold, garnished, transferred,
pledged, or encumbered except by a written designation of a beneficiary under
the Plan, by written will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Participant, at the
option of the Company or through operation of a mandatory or optional sinking
fund or analogous provision. However, the Company reserves the right to amend or
terminate the Plan at any time, except that no such amendment or termination
shall adversely affect the right of the Participant to the balance of his or her
deferred account as of the date of such amendment or termination.
The Obligations are not convertible into another security of the
Company. The Obligations will not have the benefit of a negative pledge or any
other affirmative or negative covenant on the part of the Company. No trustee
has been appointed having the authority to take action with respect to the
Obligations and each Participant will be responsible for acting independently
with respect to, among other things, the giving of notices, responding to any
requests for consents, waivers or amendments pertaining to the Obligations,
enforcing covenants and taking action upon default.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, provides that under certain circumstances a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company or is or was
serving at its request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Article XIII, Section 2 of the Restated Certificate of Incorporation of
the Company provides in effect that, subject to certain limited exceptions, the
Company shall indemnify its directors and officers to the extent authorized or
permitted by the General Corporation Law of the State of Delaware. The directors
and officers of the Company are insured under policies of insurance maintained
by the Company, subject to the limits of the policies, against certain losses
arising from any claims made against them by reason of being or having been such
directors or officers. Like indemnification and insurance is also provided to
those employees of the Company who serve as administrators of the Plan. In
addition, the Company has entered into contracts with all of its directors
providing for indemnification of such persons by the Company to the full extent
authorized or permitted by law, subject to certain limited exceptions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. Exhibits.
5 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
23(b) Consent of Deloitte & Touche LLP.
3
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24 Power of Attorney (included on page 5).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering hereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item 6 of
this registration statement, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York and State of New York on the 17th day of
August, 1999.
MERRILL LYNCH & CO., INC.
By: /s/ DAVID H. KOMANSKY
------------------------------------
David H. Komansky
(Chairman of the Board,
Chief Executive Officer and Director)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David H. Komansky, E. Stanley
O'Neal, and Stephen L. Hammerman, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 17th day of August, 1999.
<TABLE>
<CAPTION>
Signature Title
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<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
- --------------------------------------------------------- (Principal Accounting Officer)
(Ahmass L. Fakahany)
</TABLE>
5
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<TABLE>
<CAPTION>
Signature Title
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<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
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EXhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
+ 5 Opinion of Brown & Wood LLP.
+ 15 Letter re: unaudited interim financial information.
+ 23(a) Consent of Brown & Wood LLP (included as part of Exhibit 5).
+ 23(b) Consent of Deloitte & Touche LLP.
+ 24 Power of Attorney (included on page 5).
+ Filed herewith.
</TABLE>
7
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[Letterhead of Brown & Wood LLP] Exhibit 5
August 17, 1999
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1334
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
$200,000,000 of Deferred Compensation Obligations, which represent unsecured
obligations of the Company to pay deferred compensation in the future in
accordance with the terms of the Merrill Lynch & Co., Inc. 2000 Deferred
Compensation Plan for a Select Group of Eligible Employees (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, when issued
in accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
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
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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 2000 Deferred Compensation
Plan for a Select Group of Eligible Employees 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.
/s/ Deloitte & Touche LLP
New York, New York
August 17, 1999
