<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 19, 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 Statement on
Form S-3 (File No. 333-59997) 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 $72,000,000 aggregate principal amount of Consumer Staples Select
Sector SPDR(R) Fund Market Index Target-Term Securities(R) due April 19, 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 Consumer Staples
Select Sector SPDR(R) Fund Market Index Target-Term
Securities(R) due April 19, 2006.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the Consumer
Staples Select Sector SPDR(R) Fund Market Index Target-
Term Securities(R) due April 19, 2006 (including
consent for inclusion of such opinion in this report
and in Merrill Lynch & Co., Inc.'s Registration
Statement relating to such Securities).
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
MERRILL LYNCH & CO., INC.
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(Registrant)
By: /s/ John C. Stomber
---------------------------
John C. Stomber
Senior Vice President
and
Treasurer
Date: April 19, 1999
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
MERRILL LYNCH & CO., INC.
EXHIBITS TO CURRENT REPORT ON
FORM 8-K DATED APRIL 19, 1999
Commission File
Number 1-7182
<PAGE>
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 Consumer Staples Select
Sector SPDR(R) Fund Market Index Target-Term Securities(R)
due April 19, 2006.
(5) & (23) Opinion re: legality; consent of counsel.
Opinion of Brown & Wood LLP relating to the Consumer Staples
Select Sector SPDR(R) Fund Market Index Target-Term
Securities due April 19, 2006 (including consent for
inclusion of such opinion in this report and in Merrill
Lynch & Co., Inc.'s Registration Statement relating to such
Securities)
<PAGE>
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-1 7,200,000 Units
CUSIP 590188 488
(Each Unit representing $10 principal
amount of MITTS Securities)
MERRILL LYNCH & CO., INC.
Consumer Staples Select Sector SPDR(R) Fund
Market Index Target-Term Securities(R)
due April 19, 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-TWO MILLION DOLLARS
($72,000,000) (the "Principal Amount") plus the Supplemental Redemption Amount,
as defined below, on April 19, 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 Consumer Staples Select Sector SPDR
Fund Market Index Target-Term Securities due April 19, 2006.
At maturity, a beneficial owner of a MITTS Security will be entitled to receive
the number of shares of the Consumer Staples Select Sector SPDR(R) Fund (the
"Consumer Staples SPDR(R) Fund") (or cash with an equal value) equal in value
(determined based on the Ending Value (as
<PAGE>
defined below)) to 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. If the Adjusted Ending Value (as defined below)
does not exceed the Starting Value, a beneficial owner of a MITTS Security will
be entitled to receive only the number of shares of the Consumer Staples SPDR
Fund (or cash with an equal value) equal in value (determined based on the
Ending Value) to the Principal Amount of such MITTS Security.
If the Company chooses to deliver shares of the Consumer Staples SPDR Funds to
the holders hereof at the Stated Maturity, the Company or one of its affiliates
will deliver such shares that are then newly issued by the Consumer Staples SPDR
Fund.
The Company may, at its option, in lieu of delivering shares of the Consumer
Staples SPDR Fund, pay cash in an amount equal to the sum of the Principal
Amount of the MITTS Securities and the Supplemental Redemption Amount, if any.
In addition, if at any time Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MLPF&S") ceases to be a soliciting dealer in the shares of the Consumer
Staples SPDR Fund, the Company will pay the amount due to the holders of the
MITTS Securities in cash instead of shares.
Supplemental Redemption Amount
The "Supplemental Redemption Amount" with respect to this MITTS Security equals:
Principal Amount x (Adjusted Ending Value-Starting Value)
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Starting Value
provided, however, that in no event will the Supplemental Redemption Amount be
less than zero. The Starting Value equals 27.4089. The Adjusted Ending Value
will be determined by the calculation agent and will equal the Ending Value, as
reduced by the Adjustment Factor (as defined below). The "Ending Value" will
equal the average (arithmetic mean) of the Net Asset Values (as defined below)
per share of the Consumer Staples SPDR Fund on each of the first five
Calculation Days (as defined below) during the Calculation Period (as defined
below). If there are fewer than five Calculation Days in the Calculation Period,
the Ending Value will equal the average (arithmetic mean) of the Net Asset
Values of the Consumer Staples SPDR Fund on each of such Calculation Days, and
if there is only one Calculation Day, then the Ending Value will be equal to the
Net Asset Value per share of the Consumer Staples SPDR Fund on such Calculation
Day. If no Calculation Days occur during the Calculation Period because of
Market Disruption Events (as defined below), then the Ending Value shall mean
the Net Asset Value per share of the Consumer Staples SPDR Fund on the last
Trading Day (as defined below) prior to the Calculation Period for which a Net
Asset Value per share of the Consumer Staples SPDR Fund was determined.
<PAGE>
The "Adjustment Factor" equals 1.95% 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.
"Net Asset Value" means the net asset value per share of the Consumer Staples
SPDR Fund as determined by the Consumer Staples SPDR Fund. The Consumer Staples
SPDR Fund calculates its net asset value per share by dividing the value of its
net assets (i.e., the value of its total assets less total liabilities) by its
total number of shares outstanding.
The "Calculation Period" means the period from and including the seventh
scheduled Calculation Day prior to the maturity to and including the second
scheduled Calculation Day prior to maturity.
"Calculation Day" means any Trading Day on which a Market Disruption Event has
not occurred.
"Trading Day" is a day on which the shares of the Consumer Staples SPDR Fund (A)
are not suspended from trading on any national or regional securities exchange
or association or over-the-counter market at the close of business and (B) have
traded at least once on a national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the shares of the Consumer Staples SPDR Fund.
Fractional Shares
No fractional shares of the Consumer Staples SPDR Fund will be distributed by
the Company at maturity. In the event the Company elects to pay holders of the
MITTS Securities in shares of the Consumer Staples SPDR Fund, all amounts due to
any holder of the MITTS Securities in respect of the total number of units held
by such holder will be aggregated, and in lieu of delivering any fractional
share to such holder, such holder will receive the cash value of such fractional
share based on the Ending Value.
Adjustments to the Net Asset Value; Market Disruption Events
If at any time the shares of the Consumer Staples SPDR Fund are subject to a
split or reverse split, the calculation agent shall adjust the Net Asset Value
per share of the Consumer Staples SPDR Fund used to calculate the Ending Value
in order to arrive at a Net Asset Value per share of the Consumer Staples SPDR
Fund as if such split or reverse split, as the case may be, had not occurred.
"Market Disruption Event" means any of the following events, as determined by
the calculation agent:
(a) the suspension or material limitation on trading, in each case, for more
than two hours of trading, or during the one-half hour period preceding the
close of trading on the applicable
<PAGE>
exchange, in 20% or more of the stocks which then comprise the Consumer Staples
Select Sector Index;
(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 related to the shares of the Consumer Staples SPDR Fund which are
traded on any major U.S. exchange; or
(c) the Consumer Staples SPDR Fund (1) is unable or otherwise fails to issue a
Net Asset Value for any shares of the Consumer Staples SPDR Fund after the close
of business on the New York Stock Exchange ("NYSE") or (2) suspends the creation
or redemption of shares of the Consumer Staples SPDR Fund.
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 Securities and Exchange Commission of similar scope as
determined by the calculation agent, will be considered "material".
For the purposes of paragraphs (a) and (b) of this definition, 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.
Termination of the Consumer Staples SPDR Fund
If the Consumer Staples SPDR Fund is liquidated or otherwise terminated, for
purposes of calculating the Supplemental Redemption Amount payable at the
maturity of the MITTS Securities, the "Net Asset Value" will be calculated by
the calculation agent as follows: The Net Asset Value per share of the Consumer
Staples SPDR Fund on the Trading Day occurring immediately before any
liquidating distribution will equal the Net Asset Value for such day (the "Pre-
liquidation Date"). The calculation agent will then calculate the Net Asset
Value after the close of trading on each Trading Day (each such date, a
"Determination Date") after the Pre-liquidation Date by increasing or
decreasing, as the case may be, the Net Asset Value as of the immediately
preceding Trading Day by the percentage by which the closing value of the
Consumer Staples Select Sector Index increases or decreases from such
immediately preceding Trading Day to such Determination Date and further
decreasing such Net Asset Value by fees, expenses and non-liquidating
distribution (together, "Fund Expenses") that the calculation agent, in its sole
judgment but with reference to the Fund Expenses actually incurred by the
Consumer Staples SPDR Fund before its liquidation or termination, deems would
reasonably have been accrued and included in the calculation of the Net Asset
Value per share of the Consumer Staples SPDR Fund had it not been liquidated or
terminated, from such immediately preceding Trading Day to such Determination
Date. The calculation agent will cause notice of each such value to be
published not less often than once each month in The Wall Street Journal (or
another
<PAGE>
newspaper of general circulation) and arrange for information with respect to
such values to be made available by telephone.
If the Consumer Staples SPDR Fund is liquidated or otherwise terminated and the
Consumer Staples Select Sector Index is no longer calculated or published (an
"Index Termination Event"), the calculation agent will select a successor index
that it determines, in its sole discretion, to be comparable to the Consumer
Staples Select Sector Index, and, upon the calculation agent's notification of
such determination to the Trustee and the Company, the calculation agent will
substitute the successor index for the Consumer Staples Select Sector Index and
calculate the Net Asset Value in accordance with the procedures referred to in
the immediately preceding paragraph with reference to such successor index. Upon
any selection by the calculation agent of a successor index, the Company shall
cause notice thereof to be given to holders of the MITTS Securities.
In the event that an Index Termination Event occurs and a successor index to the
Consumer Staples Select Sector Index is not selected by the calculation agent or
is no longer published on any of the Calculation Days, the calculation agent
shall compute a substitute index for the Consumer Staples Select Sector Index
for any such Calculation Day in accordance with the procedures last used to
calculate the Consumer Staples Select Sector Index prior to any such
discontinuance. The calculation agent will calculate the Net Asset Value in
accordance with the procedures referred to in the first paragraph of this
section with reference to such substitute index. Upon any selection by the
calculation agent of such substitute index, the Company shall cause notice
thereof to be given to holders of the MITTS Securities.
If S&P discontinues publication of the Standard & Poor's 500 Index subsequent to
an Index Termination Event and (i) a successor index to the Consumer Staples
Select Sector Index is not selected by the calculation agent or is no longer
published on any of the Calculation Days and (ii) the calculation agent is
unable to calculate a substitute index for the Consumer Staples Select Sector
Index, the calculation agent will compute a substitute index for the S&P 500
Index for any such Calculation Day in accordance with the procedures last used
to calculate the S&P 500 Index prior to any such discontinuance. If the
calculation agent calculates such substitute index for the S&P 500 Index, the
calculation agent will use such substitute index to calculate the substitute
index for the Consumer Staples Select Sector Index.
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.
<PAGE>
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 is prorated based on a 365-day year and applied each calendar
day to reduce the Net Asset Value per share of the Consumer Staples SPDR Fund
used to calculate the Supplemental Redemption Amount.
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 5.94% 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.
<PAGE>
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 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.
<PAGE>
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: April 19, 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 Assistant Secretary
<PAGE>
EXHIBIT (5)&(23)
April 19, 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 April 13, 1999 (the "Terms Agreement") between the
Company and MLPF&S (the "Underwriter"), of $72,000,000 aggregate principal
amount of the Company's Consumer Staples Select Sector SPDR Fund Market Index
Target-Term Securities due April 19, 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 Statement on Form S-3 (File No.
333-59997) relating to the Securities (the "Registration Statement").
<PAGE>
Based upon the foregoing and upon such further investigation as we deemed
relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of
Delaware.
2. The 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
Statement and as an exhibit to the Current Report of the Company on Form 8-K
dated April 19, 1999.
Very truly yours,
/s/ Brown & Wood LLP
