-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SuhkgI0ZCtnuqdDIEJhzhn0Bpt7mNn9D2ycqZFXjBOmROmZhj7t0JQie91Pjok1O stSUgUz2ZPK5QlHN/V2/DA== 0000950130-99-003321.txt : 19990624 0000950130-99-003321.hdr.sgml : 19990624 ACCESSION NUMBER: 0000950130-99-003321 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990526 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990526 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERRILL LYNCH & CO INC CENTRAL INDEX KEY: 0000065100 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 132740599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-07182 FILM NUMBER: 99634723 BUSINESS ADDRESS: STREET 1: 250 VESEY ST STREET 2: WORLD FINANCIAL CTR N TOWER CITY: NEW YORK STATE: NY ZIP: 10281-1334 BUSINESS PHONE: 2124491000 MAIL ADDRESS: STREET 1: 250 VESEY STREET STREET 2: WORLD FINACIAL CENTER FLR 23 CITY: NEW YORK STATE: NY ZIP: 10281 8-K 1 FORM 8-K 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 26, 1999 ------------ Merrill Lynch & Co., Inc. ------------------------- (Exact name of Registrant as specified in its charter) Delaware 1-7182 13-2740599 - -------------------------------------------------------------------------------- (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 - -------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 449-1000 -------------- - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report.) Item 5. Other Events - ------- ------------- 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. ("ML&Co.") 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 ML&Co. and The Chase Manhattan Bank (the "Indenture"). ML&Co. will issue $31,000,000 aggregate principal amount of Major 11 International Market Index Target-Term Securities(R) due May 26, 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 ------------------------------------------------------------------ EXHIBITS (4) Instruments defining the rights of security holders, including indentures. Form of Merrill Lynch & Co., Inc.'s Major 11 International Market Index Target-Term Securities(R) due May 26, 2006. (5) & (23) Opinion re: legality; consent of counsel. Opinion of Brown & Wood LLP relating to the Major 11 International Market Index Target-Term Securities(R) due May 26, 2006 (including consent for inclusion of such opinion in this report and in Merrill Lynch & Co., Inc.'s Registration Statement relating to such Securities). 2 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. ------------------------------ (Registrant) By: /s/John C. Stomber ----------------------- John C. Stomber Senior Vice President and Treasurer Date: May 26, 1999 3 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 MERRILL LYNCH & CO., INC. EXHIBITS TO CURRENT REPORT ON FORM 8-K DATED MAY 26, 1999 Commission File Number 1-7182 4 Exhibit Index Exhibit No. Description Page - ----------- ----------- ---- (4) Instruments defining the rights of security holders, including indentures. Form of Merrill Lynch & Co., Inc.'s Major 11 International Market Index Target-Term Securities(R) due May 26, 2006. (5) & (23) Opinion re: legality; consent of counsel. Opinion of Brown & Wood LLP relating to the Major 11 International Market Index Target-Term Securities(R) due May 26, 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 EX-4 2 FORM OF NOTE EXHIBIT (4) THIS 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 SECURITIES IN CERTIFICATED FORM, THIS 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 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 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- 3,100,000 Units CUSIP 590188 454 (Each Unit representing $10 principal amount of MITTS Securities) MERRILL LYNCH & CO., INC. Major 11 International(R) Market Index Target-Term Securities(R) due May 26, 2006 ("MITTS(R) 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 THIRTY ONE MILLION DOLLARS ($31,000,000) (the "Principal Amount") plus the Supplemental Redemption Amount, as defined below, on May 26, 2006 (the "Stated Maturity"). Payment of the Principal Amount and the Supplemental Redemption Amount and any interest on any overdue amount thereof with respect to this MITTS 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 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 Major 11 International Market Index Target-Term Securities(R) due May 26, 2006. 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 126.56. The Adjusted Ending Value will be determined by Merrill Lynch, Pierce, Fenner & Smith, Incorporated (the "Calculation Agent") and will equal the average (arithmetic mean) of the closing values of the Major 11 International Index (the "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 (as defined below) during the Calculation Period (as defined below). If there are fewer than five Calculation Days, then the Adjusted Ending Value will equal the average (arithmetic mean) of the closing values of the Major 11 International Index on such 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 Major 11 International Index on such Calculation Day, as reduced by the application of the Adjustment Factor on such Calculation Day. If no Calculation Days occur during the Calculation Period, then the Adjusted Ending Value will equal the closing value of the Major 11 International 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 such day, regardless of the occurrence of a Market Disruption Event (as defined below) on such day. The "Adjustment Factor" equals 1.5% per annum and will be applied over the entire term of the MITTS Securities on a pro rated basis based on a 365-day year to reduce the closing values of the Major 11 International Index used to calculate the Supplemental Redemption Amount during the Calculation Period. The "Calculation Period" means the period from and including the seventh scheduled Index Business Day prior to the Stated Maturity to and including the second scheduled Index Business Day prior to the Stated Maturity. "Calculation Day" means any Index Business Day during the Calculation Period on which a Market Disruption Event has not occurred. An "Index Business Day" is a day on which the New York Stock Exchange ("NYSE") and the American Stock Exchange ("AMEX") are open for trading and the 2 Major 11 International 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. Adjustments to the Index; Market Disruption Events If at any time AMEX changes its method of calculating the Major 11 International Index, or the value of the Major 11 International Index changes, in any material respect, or if the Major 11 International Index is in any other way modified so that such Index does not, in the opinion of the Calculation Agent, fairly represent the value of the Major 11 International Index had any changes or modifications not been made, then, from and after such time, the Calculation Agent shall, at the close of business in New York, New York, on each date that the closing value of the Major 11 International 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 Major 11 International Index as if no changes or modifications had been made, and calculate such closing value with reference to the Major 11 International Index, as so adjusted. Accordingly, if the method of calculating the Major 11 International Index is modified so that the value of the Major 11 International 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 such Index in order to arrive at a value of the Major 11 International Index as if it had not been modified (e.g., as if a split had not occurred). "Market Disruption Event" means, with respect to any sub-index, the occurrence or existence of any suspension of, or limitation imposed on, trading, by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise, during the one-half hour period that ends at the regular official weekday time at which trading on the Index Exchange related to that sub-index occurs, on: (A) the Index Exchange in securities that comprise 20% or more of the value of that sub-index or (B) any exchanges on which futures or options on that sub-index are traded in those options or futures if, in the determination of the Calculation Agent, that suspension or limitation is material. For the purpose of the above definition: (1) a limitation on the hours and number of days of trading will not constitute a Market Disruption Event if it results from an announced change in the regular hours of the relevant exchange and 3 (2) a limitation on trading imposed during the course of a day by reason of movements in price otherwise exceeding levels permitted by the relevant exchange will constitute a Market Disruption Event. "Index Exchange" means, with respect to any sub-index, the principal exchange on which the shares comprising that sub-index are traded. Discontinuance of the Major 11 International Index If the AMEX discontinues publication of the Major 11 International 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 Major 11 International Index (a "successor index"), then, upon the Calculation Agent's notification of any determination to the trustee and the Company, the Calculation Agent will substitute the successor index as calculated by the AMEX or any other entity for the Major 11 International 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 Major 11 International 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 Major 11 International Index in accordance with the procedures last used to calculate the Major 11 International Index before any discontinuance. If a successor index is selected or the Calculation Agent calculates a value as a substitute for the Major 11 International Index as described below, the successor index or value will be used as a substitute for the Major 11 International Index for all purposes, including for purposes of determining whether a Market Disruption Event exists. If the AMEX discontinues publication of the Major 11 International 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 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 4 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. A "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, formerly Chemical Bank (successor by merger to Manufacturers Hanover Trust Company), 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. 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 as though the date of early repayment were the Stated Maturity of the MITTS Securities, provided, however, that 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 6.45% 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. 5 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, 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 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 6 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. 7 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: May 26, 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
8 EX-5.23 3 OPINION OF LEGALITY; CONSENT OF COUNSEL EXHIBIT (5) & (23) May 26, 1999 Merrill Lynch & Co., Inc. World Financial Center North Tower New York, New York 10281-1220 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 20, 1999 (the "Terms Agreement") between the Company and MLPF&S (the "Underwriter"), of $31,000,000 aggregate principal amount of the Company's Major 11 International Market Index Target-Term Securities (R) due May 26, 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. 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 26, 1999. Very truly yours, /s/ BROWN & WOOD LLP 2 -----END PRIVACY-ENHANCED MESSAGE-----