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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 28, 1999
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Merrill Lynch & Co., Inc.
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(Exact name of Registrant as specified in its charter)
Delaware 1-7182 13-2740599
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
World Financial Center, North Tower, New York, New York 10281-1220
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 449-1000
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(Former name or former address, if changed since last report.)
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Item 5. Other Events
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Exhibits are filed herewith in connection with the Registration Statements
on Form S-3 (File Nos. 333-59997 and 333-68747) filed by Merrill Lynch & Co.,
Inc. (the "Company") with the Securities and Exchange Commission covering Senior
Debt Securities issuable under an indenture dated as of April 1, 1983, as
amended and restated, between the Company and The Chase Manhattan Bank (the
"Indenture"). The Company will issue $70,000,000 aggregate principal amount of
Select Sector SPDR Fund Growth Portfolio Market Index Target-Term Securities(R)
due May 25, 2006 under the Indenture. The exhibits consist of the form of
Securities and an opinion of counsel relating thereto.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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EXHIBITS
(4) Instruments defining the rights of
security holders, including indentures.
Form of Merrill Lynch & Co., Inc.'s Select Sector SPDR
Fund Growth Portfolio Market Index Target-Term
Securities due May 25, 2006.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the Select
Sector SPDR Fund Growth Portfolio Market Index Target-
Term Securities due May 25, 2006 (including consent for
inclusion of such opinion in this report and in Merrill
Lynch & Co., Inc.'s Registration Statement relating to
such Securities).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
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(Registrant)
By: /s/ John C. Stomber
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John C. Stomber
Senior Vice President
and
Treasurer
Date: May 28, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED MAY 28, 1999
Commission File Number 1-7182
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Exhibit Index
Exhibit No. Description Page
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(4) Instruments defining the rights of security holders,
including indentures.
Form of Merrill Lynch & Co., Inc.'s Select Sector
SPDR Fund Growth Portfolio Market Index Target-Term
Securities due May 25, 2006.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the Select
Sector SPDR Fund Growth Portfolio Market Index
Target-Term Securities due May 25, 2006 (including
consent for inclusion of such opinion in this report
and in Merrill Lynch & Co., Inc.'s Registration
Statement relating to such Securities).
5
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EXHIBIT (4)
THIS MITTS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MITTS
SECURITIES IN CERTIFICATED FORM, THIS MITTS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS MITTS
SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO MERRILL LYNCH &
CO., INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY MITTS SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. R- 7,000,000 Units
CUSIP 590188 447
(Each Unit representing $10 principal
amount of MITTS Securities)
MERRILL LYNCH & CO., INC.
Select Sector SPDR Fund Growth Portfolio Market Index
Target-Term Securities(R) due May 25, 2006
("MITTS Securities")
Merrill Lynch & Co., Inc., a Delaware corporation (hereinafter referred to
as the "Company", which term includes any successor corporation under the
Indenture herein referred to), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of SEVENTY MILLION DOLLARS
($70,000,000) (the "Principal Amount") plus the Supplemental Redemption Amount,
as defined below, on May 25, 2006 (the "Stated Maturity").
Payment or delivery of the Principal Amount and the Supplemental Redemption
Amount and any interest on any overdue amount thereof with respect to this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in the
consideration specified below, or in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts.
This MITTS Security is one of the series of Select Sector SPDR Fund Growth
Portfolio Market Index Target-Term Securities due May 25, 2006.
At maturity, a beneficial owner of a MITTS Security will be entitled to
receive the Principal Amount of such MITTS Security plus the Supplemental
Redemption Amount, if any, all as provided below. The amount to be paid by the
Company to any holder of the MITTS Securities on the maturity date will be
aggregated based on the total number of units then held by such holder and
rounded to the nearest cent.
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Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS Security
equals:
(Adjusted Ending Value - Starting Value)
Principal Amount x (--------------------------------------)
( Starting Value )
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals 100. The Adjusted Ending Value will
be determined by Merrill Lynch, Pierce, Fenner & Smith (the "Calculation Agent")
and will equal the average (arithmetic mean) of the closing values of the SPDR
Fund Growth Portfolio Index, as reduced by the application of the Adjustment
Factor on each Calculation Day (as defined below), determined on each of the
first five Calculation Days during the Calculation Period (as defined below). If
there are fewer than five Calculation Days in the Calculation Period, the
Adjusted Ending Value will equal the average (arithmetic mean) of the closing
values of the SPDR Fund Growth Portfolio Index on those Calculation Days, as
reduced by the application of the Adjustment Factor on each Calculation Day, and
if there is only one Calculation Day, then the Adjusted Ending Value will equal
the closing value of the SPDR Fund Growth Portfolio Index on that Calculation
Day, as reduced by the application of the Adjustment Factor on that Calculation
Day. If no Calculation Days occur during the Calculation Period, then the
Adjusted Ending Value shall equal the closing value of the SPDR Fund Growth
Portfolio Index determined on the last scheduled Index Business Day (as defined
below) in the Calculation Period, as reduced by the application of the
Adjustment Factor on that day, regardless of the occurrence of a Market
Disruption Event (as defined below) on that day.
The "Adjustment Factor" equals 2.35% per annum and will be prorated based
on a 365-day year and applied each calendar day during the term of the MITTS
Securities to reduce the values used to calculate the Supplemental Redemption
Amount.
The "Calculation Period" means the period from and including the seventh
scheduled Index Business Day prior to the maturity to and including the second
scheduled Index Business Day prior to maturity.
"Calculation Day" means any Index Business Day during the Caculation
Period on which a Market Disruption Event has not occurred.
An "Index Business Day" is any day on which the New York Stock Exchange
(the "NYSE") and the American Stock Exchange (the "AMEX") are open for trading
and the SPDR Fund Growth Portfolio Index or any Successor Index (as defined
below) is calculated and published.
All determinations made by the Calculation Agent shall be at the sole
discretion of the Calculation Agent and, absent a determination by the
Calculation Agent of a manifest error, shall be conclusive for all purposes and
binding on the Company and beneficial owners of the MITTS Securities.
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Adjustments to the SPDR Fund Growth Portfolio Index; Market Disruption Events
If at any time AMEX changes its method of calculating the SPDR Fund Growth
Portfolio Index, or the value of the SPDR Fund Growth Portfolio Index changes,
in any material respect, or if the SPDR Fund Growth Portfolio Index is in any
other way modified so that the SPDR Fund Growth Portfolio Index does not, in the
opinion of the Calculation Agent, fairly represent the value of the SPDR Fund
Growth Portfolio Index had any changes or modifications not been made, then,
from and after that time, the Calculation Agent shall, at the close of business
in New York, New York, on each date that the closing value of the SPDR Fund
Growth Portfolio Index is to be calculated, make any adjustments as, in the good
faith judgment of the Calculation Agent, may be necessary in order to arrive at
a calculation of a value of a stock index comparable to the SPDR Fund Growth
Portfolio Index as if no changes or modifications had been made, and calculate
the closing value with reference to the SPDR Fund Growth Portfolio Index, as so
adjusted. Accordingly, if the method of calculating the SPDR Fund Growth
Portfolio Index is modified so that the value of the SPDR Fund Growth Portfolio
Index is a fraction or a multiple of what it would have been if it had not been
modified, e.g., due to a split, then the Calculation Agent shall adjust the SPDR
Fund Growth Portfolio Index in order to arrive at a value of the SPDR Fund
Growth Portfolio Index as if it had not been modified, e.g., as if a split had
not occurred.
"Market Disruption Event" means any of the following events, with respect
to the Select Sector SPDR Funds, as determined by the Calculation Agent:
(a) the suspension or material limitation on trading for more than two
hours of trading, or during the one-half hour period preceding the
close of trading on the applicable exchange, in 20% or more of the
stocks which then comprise the Select Sector SPDR Funds underlying the
SPDR Fund Growth Portfolio Index; or
(b) the suspension or material limitation on trading, in each case, for
more than two hours of trading whether by reason of movements in price
otherwise exceeding levels permitted by the relevant exchange or
otherwise in option contracts or futures contracts related to the S&P
500 Index or the shares of a Select Sector SPDR Fund underlying the
SPDR Fund Growth Portfolio Index which are traded on any major U.S.
exchange.
A limitation on the hours in a trading day and/or number of days of trading
will not constitute a Market Disruption Event if it results from an announced
change in the regular business hours of the relevant exchange.
For the purposes of clause (a) above, any limitations on trading during
significant market fluctuations under NYSE Rule 80A or any applicable rule or
regulation enacted or promulgated by the NYSE or any other self regulatory
organization or the SEC of similar scope as determined by the Calculation Agent,
will be considered "material".
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Discontinuance of the SPDR Fund Growth Portfolio Index
If the AMEX discontinues publication of the SPDR Fund Growth Portfolio
Index and the AMEX or another entity publishes a successor or substitute index
that the Calculation Agent determines, in its sole discretion, to be comparable
to the SPDR Fund Growth Portfolio Index (any such index being referred herein as
a "Successor Index"), then, upon the Calculation Agent's notification of such
determination to the Trustee (as defined below) and the Company, the Calculation
Agent will substitute the Successor Index as calculated by the AMEX or such
other entity for the SPDR Fund Growth Portfolio Index and calculate the closing
value as described above under "--Supplemental Redemption Amount". Upon any
selection by the Calculation Agent of a Successor Index, the Company shall cause
notice to be given to holders of the MITTS Securities.
In the event that the AMEX discontinues publication of the SPDR Fund Growth
Portfolio Index and the Calculation Agent does not select a Successor Index, or
the Successor Index is no longer published on any of the Calculation Days, the
Calculation Agent will compute a substitute value for the SPDR Fund Growth
Portfolio Index in accordance with the procedures last used to calculate the
SPDR Fund Growth Portfolio Index before any discontinuance. If a Successor Index
is selected or the Calculation Agent calculates a value as a substitute for the
SPDR Fund Growth Portfolio Index, the Successor Index or value will be used as a
substitute for the SPDR Fund Growth Portfolio Index for all purposes, including
for purposes of determining whether a Market Disruption Event exists.
If the AMEX discontinues publication of the SPDR Fund Growth Portfolio
Index before the period during which the Supplemental Redemption Amount is to be
determined and the Calculation Agent determines that no Successor Index is
available at that time, then on each Exchange Business Day until the earlier to
occur of the determination of the Adjusted Ending Value and a determination by
the Calculation Agent that a Successor Index is available, the Calculation Agent
will determine the value that would be used in computing the Supplemental
Redemption Amount as described in the preceding paragraph as if that day were a
Calculation Day. The Calculation Agent will cause notice of each value to be
published not less often than once each month in The Wall Street Journal or
another newspaper of general circulation, and arrange for information with
respect to these values to be made available by telephone.
An "Exchange Business Day" is any day on which the NYSE and the AMEX are
open for trading.
General
This MITTS Security is one of a duly authorized issue of securities of the
Company, issued and to be issued under an Indenture, dated as of April 1, 1983,
as amended and restated (herein referred to as the "Indenture"), between the
Company and The Chase Manhattan Bank , as Trustee (herein referred to as the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the Trustee
and the Holders of the MITTS Securities, and the terms upon which the MITTS
Securities are, and are to be, authenticated and delivered.
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The Company hereby covenants for the benefit of the Holders of the MITTS
Securities, to the extent permitted by applicable law, not to claim voluntarily
the benefits of any laws concerning usurious rates of interest against a Holder
of the MITTS Securities.
The MITTS Securities are not subject to redemption by the Company or at the
option of the Holder prior to the Stated Maturity.
In case an Event of Default with respect to any MITTS Securities shall have
occurred and be continuing, the amount payable to a beneficial owner of a MITTS
Security upon any acceleration permitted by the MITTS Securities, with respect
to each $10 principal amount thereof, will be equal to the Principal Amount and
the Supplemental Redemption Amount, if any, calculated assuming (i) the date of
early repayment is the maturity date of the MITTS Securities and (ii) the
Adjustment Factor will be applied to the values used to calculate the
Supplemental Redemption Amount as if the MITTS Securities had not been
accelerated and had remained outstanding to the stated maturity date.
In case of default in payment of the MITTS Securities (whether at the
Stated Maturity or upon acceleration), from and after the maturity date the
MITTS Securities shall bear interest, payable upon demand of the beneficial
owners thereof, at the rate of 6.38% per annum (to the extent that payment of
such interest shall be legally enforceable) on the unpaid amount due and payable
on such date in accordance with the terms of the MITTS Securities to the date
payment of such amount has been made or duly provided for.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the MITTS Securities of each series to
be affected under the Indenture at any time by The Company and the Trustee with
the consent of the Holders of not less than 66 2/3% in aggregate principal
amount of the MITTS Securities at the time Outstanding, as defined in the
Indenture, of each series affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the MITTS Securities of each series at the time Outstanding,
on behalf of the Holders of all MITTS Securities of each series, to waive
compliance by The Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this MITTS Security shall be conclusive and binding upon
such Holder and upon all future Holders of this MITTS Security and of any MITTS
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this MITTS Security.
No reference herein to the Indenture and no provision of this MITTS
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount plus
the Supplemental Redemption Amount with respect to this MITTS Security and any
interest on any overdue amount thereof at the time, place, and rate, and in the
coin or currency or other consideration, herein prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and on the first page hereof, the transfer of this MITTS Security may be
registered on the Security Register of the Company, upon surrender of this MITTS
Security for registration of transfer at the office
5
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or agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new MITTS
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The MITTS Securities are issuable only in registered form without coupons
in denominations of $10 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations set forth therein and on the first
page hereof, the MITTS Securities are exchangeable for a like aggregate
principal amount of MITTS Securities in authorized denominations, as requested
by the Holder surrendering the same. If (x) any Depository is at any time
unwilling or unable to continue as Depository and a successor depository is not
appointed by the Company within 60 days, (y) the Company executes and delivers
to the Trustee a Company Order to the effect that this MITTS Security shall be
exchangeable or (z) an Event of Default has occurred and is continuing with
respect to the MITTS Securities, this MITTS Security shall be exchangeable for
MITTS Securities in definitive form of like tenor and of an equal aggregate
principal amount, in denominations of $10 and integral multiples thereof. Such
definitive MITTS Securities shall be registered in such name or names as the
Depository shall instruct the Trustee. If definitive MITTS Securities are so
delivered, the Company may make such changes to the form of this MITTS Security
as are necessary or appropriate to allow for the issuance of such definitive
MITTS Securities.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
Prior to due presentment of this MITTS Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this MITTS Security is registered as the
owner hereof for all purposes, whether or not this MITTS Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this MITTS Security which are defined in the Indenture
but not in this MITTS Security shall have the meanings assigned to them in the
Indenture.
Unless the certificate of authentication hereon has been executed by The
Chase Manhattan Bank, the Trustee under the Indenture, or its successor
thereunder, by the manual signature of one of its authorized officers, this
MITTS Security shall not be entitled to any benefits under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May 28, 1999
CERTIFICATE OF AUTHENTICATION Merrill Lynch & Co., Inc.
This is one of the Securities of the series [Copy of Seal]
designated therein referred to in the
within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee By:
Treasurer
By: Attest:
Authorized Officer Secretary
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EXHIBIT (5) & (23)
May 28, 1999
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281
Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of
Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called the
"Company"), certified by the Secretary of State of the State of Delaware. We
are familiar with the corporate proceedings had in connection with the proposed
issuance and sale by the Company to the Underwriter named in the Terms Agreement
referred to below, pursuant to an Underwriting Agreement dated August 5, 1998
(the "Underwriting Agreement"), between the Company and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S"), as supplemented
by the Terms Agreement dated May 25, 1999 (the "Terms Agreement") between the
Company and MLPF&S (the "Underwriter"), of $70,000,000 aggregate principal
amount of the Company's Select Sector SPDR Fund Growth Portfolio Market Index
Target-Term Securities due May 25, 2006 (the "Securities"). We have also
examined a copy of the Indenture between the Company and The Chase Manhattan
Bank as Trustee, dated as of April 1, 1983, as amended and restated (the
"Indenture"), and the Company's Registration Statements on Form S-3 (File Nos.
333-59997 and 333-68747) relating to the Securities (the "Registration
Statements").
Based upon the foregoing and upon such further investigation as we deemed
relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware.
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2. The Securities have been duly and validly authorized by the Company and
when the Securities have been duly executed and authenticated in accordance with
the terms of the Indenture and delivered against payment therefor as set forth
in the Underwriting Agreement, as supplemented by the Terms Agreement, the
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy, moratorium,
insolvency, reorganization or similar laws relating to or affecting creditors'
rights generally and except as enforcement thereof is subject to general
principles at equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
We consent to the filing of this opinion as an exhibit to the Registration
Statements and as an exhibit to the Current Report of the Company on Form 8-K
dated May 28, 1999.
Very truly yours,
