<PAGE>
As filed with the Securities and Exchange Commission on December 13, 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. Long-Term Incentive Compensation Plan
for Managers and Producers
(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>
================================ ========================== =========================== =============================
<S> <C> <C> <C>
Title of securities Amount to Proposed maximum offering Proposed maximum aggregate
to be registered be registered price per share offering price(2)
================================ ========================== =========================== =============================
Common Stock, par value
$1.33-1/3 per share,
(including Preferred Stock
Purchase Rights) (1)........... 40,000,000 shares $80.375 $3,215,000,000
================================ ========================== =========================== =============================
</TABLE>
================================ ================================
Title of securities Amount of
to be registered registration fee
================================ ================================
Common Stock, par value
$1.33-1/3 per share,
(including Preferred Stock
Purchase Rights) (1)........... $848,760.00
================================ ================================
(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) 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 December 7, 1999.
================================================================================
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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 key 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, June 25, 1999, and September 24, 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, August 4, 1999 (two reports), September 20, 1999, October 12, 1999, and
October 27, 1999, 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 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.
The authorized capital stock of the Company consists of 1,000,000,000
shares of common stock, par value $1.33-1/3 per share ("Common Stock"), and
25,000,000 shares of preferred stock, par value $1.00 per share, issuable in
series ("Preferred Stock"). As of November 26, 1999, there were 367,340,195
shares of Common Stock and 4,009,359 Exchangeable Shares outstanding. The
Exchangeable Shares are exchangeable at any time into Common Stock on a
one-for-one basis and entitle holders to dividend, voting and other rights
equivalent to Common Stock. The holders of shares of Common Stock are entitled
to one vote for each share held and each share of Common Stock is entitled to
participate equally in dividends out of funds legally available therefor, as and
when declared by the Board of Directors, and in the distribution of assets in
the event of liquidation. The shares of Common Stock have no preemptive or
conversion rights, redemption provisions or sinking fund provisions. The
outstanding shares of Common Stock are, and the shares offered hereby will be,
duly and validly issued, fully paid and nonassessable. Each share is eligible to
participate under the Rights Agreement referenced below and, to the extent
specified therein, to purchase certain securities upon the occurrence of certain
events specified in the Rights Agreement.
The Board of Directors of the Company, without further action by
stockholders, has the authority to issue shares of Preferred Stock from time to
time in one or more series and to fix the powers (including voting power),
designations, preferences as to dividends and liquidation, and relative,
participating, optional, or other special rights and the qualifications,
limitations, or restrictions thereof. As of November 26, 1999, there were
17,000,000 Depositary Shares issued each representing a one-four hundredth
interest in a share of the Company's 9% Cumulative Preferred Stock, Series A
(the "9% Preferred Stock"). The 9% Preferred Stock is a single series consisting
of 42,500 shares with an aggregate liquidation preference of $425,000,000. As of
November 26, 1999, there were 42,500 shares of 9% Preferred Stock outstanding.
From time to time, Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MLPF&S")
may
2
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occasionally acquire a temporary position in the Depositary Shares. As of
November 26, 1999, the Depositary Shares held by MLPF&S for the purpose of
resale was not material. The 9% Preferred Stock has dividend and liquidation
preference over the Common Stock and over the Series A Junior Preferred Stock
issuable pursuant to a Rights Agreement dated as of December 2, 1997 between the
Company and ChaseMellon Shareholder Services, L.L.C.
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.
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 (incorporated by
reference to Exhibit 3 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 24, 1999 (File No. 1-7182)).
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 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 Opinion of Brown & Wood LLP.
15 Letter re: unaudited interim financial information.
3
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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).
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 with or furnished to the SEC by the registrant pursuant
to Section 13 or 15(d) of the Exchange Act 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 Exchange Act, 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 SEC 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 a 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 13th day of
December, 1999.
MERRILL LYNCH & CO., INC.
By /s/ DAVID H. KOMANSKY
--------------------------
David H. Komansky
(Chairman of the Board,
Chief Executive Officer
and Director)
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 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 13th day of December, 1999.
Signature Title
--------- -----
/s/ DAVID H. KOMANSKY
- -------------------------------- Chairman of the Board, Chief
(David H. Komansky) Executive Officer and Director
/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)
5
<PAGE>
Signature Title
--------- -----
/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)
6
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- -----------
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
(incorporated by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended September
24, 1999 (File No. 1-7182)).
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 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 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.
7
<PAGE>
Exhibit 5
BROWN & WOOD LETTERHEAD
December 13, 1999
VIA HAND DELIVERY
- -----------------
Merrill Lynch & Co., Inc.
World Financial Center
North Tower
New York, New York 10281-1134
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 December 13,
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
40,000,000 shares of Common Stock, par value $1.33 1/3 per share (including
Preferred Stock Purchase Rights)(the "Common Stock"), which may be issued under
the Merrill Lynch & Co., Inc. Long-Term Incentive Compensation Plan for Managers
and Producers (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, the shares
of Common Stock issued under the Plan will be legally issued, fully paid and
nonassessable.
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
December 13, 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, June 25, 1999 and September 24, 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 and the
three- and nine-month periods ended September 24, 1999 and September 25, 1998 as
indicated in our reports dated May 7, 1999, August 6, 1999 and November 5, 1999,
respectively; because we did not perform an audit, we expressed no opinion on
that information. The financial information as of March 27, 1998 and for the
three-month period ended March 27, 1998 and as of June 26, 1998 for 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, June 25,
1999 and September 24, 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 Long-Term Incentive
Compensation Plan for Managers and Producers 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
December 13, 1999
