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): December 31, 2008
Merrill Lynch & Co., Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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1-7182
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13-2740599
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(State or Other
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(Commission
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(I.R.S. Employer
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Jurisdiction of
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File Number)
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Identification No.)
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Incorporation)
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4 World Financial Center, New York, New York
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10080
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone
number, including area code: (212) 449-1000
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(Former Name or Former Address, if Changed Since Last Report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
On September 15, 2008, Merrill Lynch & Co., Inc. (“Merrill Lynch” or the “Company”) entered into an
Agreement and Plan of Merger (as amended by Amendment No. 1 dated as
of October 21, 2008, the “Merger Agreement”) with Bank of
America Corporation (“Bank of America”). Pursuant
to the Merger Agreement, on January 1, 2009, a wholly-owned subsidiary of Bank of America (“Merger
Sub”) merged with and into Merrill Lynch, with Merrill Lynch continuing as the surviving
corporation and a subsidiary of Bank of America (the “Merger”).
In connection with the consummation of the Merger, Merrill Lynch requested that each of the NYSE
Euronext, Inc. (the “NYSE”) and the Chicago Stock Exchange
(the “CHX”) file with the Securities
and Exchange Commission an application on Form 25 to (1) remove Merrill Lynch’s common stock, par
value $1.33
1
/
3
per share (the “Common Stock”), from listing on each of the NYSE and the CHX and (2)
withdraw the registration of the Common Stock under Section 12(b) of the Securities Exchange Act of
1934, as amended. In connection with the completion of the Merger, trading of the Common Stock on
the NYSE and the CHX ceased before the opening of trading on January 2,
2009.
Item 5.01 Changes in Control of Registrant.
In connection with the consummation of the Merger, each outstanding share of
Common Stock, except for specified shares of Common Stock held by the Company
and Bank of America and their respective subsidiaries, was converted into the right to receive
0.8595 of a share of Bank of America common stock for each share of Common Stock held immediately
prior to the Merger.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In
connection with the Merger, the Company’s Restated Certificate of
Incorporation (the “Company Certificate”) was amended as follows:
(1) Effective
as of December 31, 2008, Section 5 of the Certificate of Designations of the 9.00% Non-Voting Mandatory Convertible
Non-Cumulative Preferred Stock, Series 2 (the “Series 2 Preferred Stock”) and Section 5 of the
Certificate of Designations of the 9.00% Non-Voting Mandatory Convertible Non-Cumulative Preferred
Stock, Series 3 (the “Series 3 Preferred Stock”)
were amended to provide that (a) each share of such
series of Company preferred stock shall vote together as a single class with the shares of Company
Common Stock on all matters presented for a vote of the holders of Company Common Stock, and (b)
each such share shall be entitled to 600 votes. In connection with
the foregoing amendments, the title of the Series 2 Preferred Stock
was redesignated as “9.00% Mandatory Convertible Non-Cumulative
Preferred Stock, Series 2” and the title of the Series 3
Preferred Stock was redesignated as “9.00% Mandatory Convertible
Non-Cumulative Preferred Stock, Series 3.”
(2) Effective
as of January 1, 2009, Section 2B.(b) of Article IV of the Company Certificate was amended to provide that, effective
as of the effective time of the Merger, each holder of Company Common Stock shall be entitled to 250,000 votes
for each share thereof held by such holder.
(3) Effective
as of January 1, 2009, Section 1 of Article XI of the Company Certificate was amended to provide that, effective as of
the effective time of the Merger, holders of Company Common Stock may take action
without a meeting by written consent of the holders of 80% of the shares of Company Common Stock
outstanding and entitled to vote.
The
Certificate of Merger, which included as an Exhibit the amendments described in (2) and (3) above,
and the Certificates of Amendment to Certificates of Designations with respect to the Series 2 Preferred Stock and the
Series 3 Preferred Stock are attached as Exhibits 3.1, 3.2 and 3.3, respectively and are
incorporated by reference herein.
At the effective time of the Merger, the Bylaws of Merger Sub, as in effect
immediately prior to the effective time of the Merger, became the Bylaws of Merrill Lynch (the “Amended Bylaws”).
The Amended Bylaws are attached as Exhibit 3.4 hereto and are incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No.
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Description
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3.1
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Certificate of Merger merging MER
Merger Corporation with and into Merrill Lynch & Co., Inc.
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3.2
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Certificate of Amendment to
Certificate of Designations of 9.00% Non-Voting Mandatory Convertible
Non-Cumulative Preferred Stock, Series 2 of Merrill Lynch &
Co., Inc.
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3.3
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Certificate of Amendment to
Certificate of Designations of 9.00% Non-Voting Mandatory Convertible
Non-Cumulative Preferred Stock, Series 3 of Merrill Lynch &
Co., Inc.
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3.4
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By-Laws of Merrill Lynch & Co.,
Inc. as of January 1, 2009
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