-----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, BzvvR/Aa0Drc03+s7n6ICrpktH/jagUpLERBuLJamxp3kB51oT+Sim5h9ow4abXa epawouZD7hrbLopw/XmDsg== 0000950123-97-002174.txt : 19970317 0000950123-97-002174.hdr.sgml : 19970317 ACCESSION NUMBER: 0000950123-97-002174 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970314 EFFECTIVENESS DATE: 19970314 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCK & CO INC CENTRAL INDEX KEY: 0000064978 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 221109110 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23293 FILM NUMBER: 97556524 BUSINESS ADDRESS: STREET 1: ONE MERCK DR STREET 2: P O BOX 100 CITY: WHITEHOUSE STATION STATE: NJ ZIP: 08889-0100 BUSINESS PHONE: 9084234044 MAIL ADDRESS: STREET 1: ONE MERCK DR STREET 2: PO BOX 100 WS3AB-05 CITY: WHITEHOUSE STATION STATE: NJ ZIP: 08889-0100 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on March 14, 1997 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 MERCK & CO., INC. (Exact name of issuer as specified in its charter) P.O. BOX 1000 WHITEHOUSE STATION, NEW JERSEY 08889-0100 (Address of Principal Executive Offices) NEW JERSEY 22-1109110 (State of Incorporation) (I.R.S. Employer Identification No.) SYSTEMED, INC. 1993 EMPLOYEE STOCK OPTION PLAN SYSTEMED, INC. 1993 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN SYSTEMED, INC. NONQUALIFIED STOCK OPTION PLAN - 1986 STOCK OPTION AGREEMENTS DATED DECEMBER 15, 1993 AND APRIL 28, 1996 WITH JOHN F. FLOOD, JR. WARRANT AGREEMENT DATED DECEMBER 20, 1991 WITH SUTRO & CO. (Full title of the plans) CELIA A. COLBERT Secretary and Assistant General Counsel MERCK & CO., INC. P.O. Box 100 Whitehouse Station, New Jersey 08889-0100 (908) 423-1000 (Name, address and telephone number of agent for service) If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.|X| CALCULATION OF REGISTRATION FEE
- --------------------------------------- ---------------------- ------------------- ------------------- ------------- Title of Securities Amount Proposed Proposed Amount of to be registered to be maximum maximum registration registered offering price aggregate fee per share* offering price* - --------------------------------------- ---------------------- ------------------- ------------------- ------------- Common Stock (no Par Value) 145,080 shares $92.875 $13,474,305 $4,084 - --------------------------------------- ---------------------- ------------------- ------------------- -------------
* The prices stated above are estimated solely for the purpose of determining the registration fee and are based on the average of the high and low market prices of the stock as reported on the composite tape of New York Stock Exchange listed issues on March 7, 1997. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the registrant (Exchange Act File No. 1-3305) with the Securities and Exchange Commission are incorporated herein by reference and made a part hereof: (a) Annual Report on Form 10-K, filed March 20, 1996 for the fiscal year ended December 31, 1995; (b) Quarterly Report on Form 10-Q filed on May 14, 1996 for the quarter ended March 31, 1996; (c) Form 10-K/A filed on June 24, 1996, amending the registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1995; (d) Quarterly Report on Form 10-Q filed on August 13, 1996 for the quarter ended June 30, 1996; (e) Quarterly Report on Form 10-Q filed on November 12, 1996 for the quarter ended September 30, 1996; (f) Current Report on Form 8-K filed on December 23, 1996; (g) Proxy Statement for the Annual Meeting of Stockholders held on April 23, 1996; and (h) The descriptions of the Common Stock of the registrant set forth in the registrant's Registration Statements pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description. 2 3 All documents filed by the registrant pursuant to Section 13, 14 or 15(d) of the Exchange Act from the date hereof and prior to the termination of the offering of the securities offered hereby shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. An Exhibit Index can be found on page 14 of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the Common Stock will be passed upon for the Company by Bert I. Weinstein, Assistant General Counsel of the Company. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The New Jersey Business Corporation Act provides that a New Jersey corporation has the power to indemnify a director or officer against his or her expenses and liabilities in connection with any proceeding involving the director or officer by reason of his or her being or having been such a director or officer, other than a proceeding by or in the right of the corporation, if such a director or officer acted in good faith and in a manner he or she reasonably believed to be in or 3 4 not opposed to the best interests of the corporation; and with respect to any criminal proceeding, such director or officer had no reasonable cause to believe his or her conduct was unlawful. The indemnification and advancement of expenses shall not exclude any other rights, including the right to be indemnified against liabilities and expenses incurred in proceedings by or in the right of the corporation, to which a director or officer may be entitled under a certificate of incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided that no indemnification shall be made to or on behalf of a director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his or her acts or omissions (a) were in breach of his or her duty of loyalty to the corporation or its shareholders, (b) were not in good faith or involved in a knowing violation of law or (c) resulted in receipt by the director or officer of an improper personal benefit. The Company's Restated Certificate of Incorporation provides that, to the fullest extent permitted by the laws of the State of New Jersey, directors and officers of the Company shall not be personally liable to the Company or its stockholders for damages for breach of any duty owed to the Company or its stockholders, except that a director or officer shall not be relieved from liability for any breach of duty based upon an act or omission (a) in breach of such person's duty of loyalty to the Company or its stockholders, (b) not in good faith or involving a knowing violation of law or (c) resulting in receipt by such person of an improper personal benefit. 4 5 The By-Laws of the Company provide that a former, present or future director, officer or employee of the Company or the legal representative of any such director, officer or employee shall be indemnified by the Company: (a) against reasonable costs, disbursements and counsel fees paid or incurred where such person has been successful in the defense on the merits or otherwise of any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit, or proceeding or in defense of any claim, issue or matter therein, brought by reason of such person's being or having been such director, officer or employee, and (b) with respect to the defense of any such action, suit, proceeding, inquiry or investigation for which indemnification is not made under (a) above, against reasonable costs, disbursements (which shall include amounts paid in satisfaction of settlements, judgments, fines and penalties, exclusive, however, of any amount paid or payable to the Company) and counsel fees if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and in connection with any criminal proceedings such person also had no reasonable cause to believe the conduct was unlawful, with the determination as to whether the applicable standard of conduct was met to be made by a majority of the members of the Board of Directors (sitting as a Committee of the Board) who were not parties to such inquiry, investigation, action, suit or proceeding or by any one or more disinterested 5 6 counsel to whom the question may be referred by the Board of Directors; provided, however, in connection with any proceeding by or in the right of the Company, no indemnification shall be provided as to any person adjudged by any court to be liable to the Company except as and to the extent determined by such court. The Company enters into indemnification agreements with its directors and officers and enters into insurance agreements on its own behalf. The indemnification agreements provide that the Company agrees to hold harmless and indemnify its directors and officers to the fullest extent authorized or permitted by the Business Corporation Act of the State of New Jersey, or any other applicable law, or by any amendment thereof or other statutory provisions authorizing or permitting such indemnification that is adopted after the date hereof. Without limiting the generality of the foregoing, the Company agrees to hold harmless and indemnify its directors and officers to the fullest extent permitted by applicable law against any and all expenses, judgments, fines, and amounts paid in settlement actually and reasonably incurred by its directors and officers in connection with the defense of any present or future threatened, pending, or completed claim, action, suit, or proceeding by reason of the fact that they were, are, shall be, or shall have been a director or officer of the Company, or are or were serving, shall serve, or shall have served, at the request of the Company, as director or officer of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. 6 7 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS
Exhibit Description Method of Filing Number 4(a) --Restated Certificate of Incorporation of the Incorporated by reference to Form 10-K registrant (May 6, 1992) Annual Report for the fiscal year ended December 31, 1992 4(b) --By-Laws of the registrant (as amended effective Incorporated by reference to Form 10-K June 9, 1994) Annual Report for the fiscal year ended December 31, 1994 5 --Opinion and Consent of Bert I. Weinstein, Filed with this Registration Statement Assistant General Counsel of registrant 23 --Consent of Arthur Andersen LLP Included at Page 13 of this Registration Statement 24 -- Certified Resolution of Board of Directors and Filed with this Registration Statement Power of Attorney
ITEM 9. UNDERTAKINGS The undersigned registrant hereby undertakes: 1. (a) To file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement to include any material information with respect 7 8 to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (b) 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 that time shall be deemed to be the initial bona fide offering thereof. (c) 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. 2. That, for purposes 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. 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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as 8 9 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 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the issuer 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, thereunder 9 10 duly authorized, in the City of New York and the State of New York on the 17th day of December, 1996. Merck & Co., Inc. By * ----------------------------- Raymond V. Gilmartin (Chairman of the Board, President and Chief Executive Officer) By /s/ Celia A. Colbert ----------------------------- Celia A. Colbert (Secretary and Assistant General Counsel) (Attorney-in-Fact) Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
Signatures Title Date - ---------- ----- ---- * - ------------------------- Raymond V. Gilmartin Chairman of the Board, President and December 17, 1996 Chief Executive Officer; Principal Executive Officer; Director * - ------------------------- Judy C. Lewent Senior Vice President and Chief December 17, 1996 Financial Officer; Principal Financial Officer * - ------------------------- Peter E. Nugent Vice President, Controller; Principal December 17, 1996 Accounting Officer
10 11 * - ------------------------- H. Brewster Atwater, Jr. Director December 17, 1996 * - ------------------------- Derek Birkin Director December 17, 1996 * - ------------------------- Lawrence A. Bossidy Director December 17, 1996 * - ------------------------- William G. Bowen Director December 17, 1996 * - ------------------------- Carolyne K. Davis Director December 17, 1996 * - ------------------------- Lloyd C. Elam Director December 17, 1996 * - ------------------------- Charles E. Exley Director December 17, 1996 * - ------------------------- William N. Kelley Director December 17, 1996 * - ------------------------- Samuel O. Thier Director December 17, 1996 * - ------------------------- Dennis Weatherstone Director December 17, 1996
* Celia A. Colbert, by signing her name hereto, does hereby sign this document pursuant to powers of attorney duly executed by the persons named, filed with the Securities and Exchange 11 12 Commission as an exhibit to this document, on behalf of such persons, all in the capacities and on the date stated, such persons including a majority of the directors of the Company. By /s/ Celia A. Colbert --------------------------- Celia A. Colbert (Secretary and Assistant General Counsel) (Attorney-in-Fact) 12 13 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 Registration Statement of our report dated January 23, 1996 included in and incorporated by reference in Merck & Co., Inc.'s Annual Report on Form 10-K, for the fiscal year ended December 31, 1995, as amended by Form 10-K/A dated June 24, 1996 and to all references to our Firm included in or made a part of this Registration Statement. ARTHUR ANDERSEN LLP New York, N.Y. December 17, 1996 13 14 EXHIBIT INDEX
- ------------------------------ ------------------------------------------ ---------------------------------------- EXHIBIT NUMBER DESCRIPTION METHOD OF FILING - ------------------------------ ------------------------------------------ ---------------------------------------- 4(a) --Restated Certificate of Incorporation Incorporated by reference to Form 10-K of the registrant (May 6, 1992) Annual Report for the fiscal year ended December 31, 1992 4(b) --By-Laws of the registrant (as amended Incorporated by reference to Form 10-K effective June 9, 1994) Annual Report for the fiscal year ended December 31, 1994 5 --Opinion and Consent of Bert I. Filed with this Registration Statement Weinstein, Assistant General Counsel of registrant 23 --Consent of Arthur Andersen LLP Included at Page 13 of this Registration Statement 24 --Certified Resolution of Board of Filed with this Registration Statement Directors and Power of Attorney - ------------------------------ ------------------------------------------ ----------------------------------------
14 EX-5 2 OPINION AND CONSENT OF BERT I. WEINSTEIN 1 EXHIBIT 5 December 17, 1996 Board of Directors Merck & Co., Inc. One Merck Drive Whitehouse Station, NJ 08889-0100 Re: Merck & Co., Inc. - Common Stock Ladies and Gentlemen: I am the Assistant General Counsel of Merck & Co., Inc., a New Jersey corporation (the "Corporation"), and in such capacity have acted as counsel for the Corporation in connection with the proposed registration under the Securities Act of 1933, as amended, of up to 145,080 shares of the Common Stock, no par value (the "Shares"), of the Corporation, which may be issued by the Corporation pursuant to the Systemed, Inc. 1993 Employee Stock Option Plan, Systemed, Inc. 1993 NonEmployee Director Stock Option Plan, Systemed, Inc. NonQualified Stock Option Plan - 1986, Stock Option Agreements dated December 15, 1993 and April 28, 1996 with John F. Flood, Jr. and Warrant Agreement dated December 20, 1991 with Sutro & Co., or any successor plans thereto, as such plans or successor plans may be amended from time to time. I have examined such corporate records and other documents, including the Registration Statement on Form S-8 relating to the Shares, and have reviewed such matters of law as I have deemed necessary for this opinion. I am admitted to the bars of the state of New York and the District of Columbia. The opinions expressed herein are limited in all respects to the federal laws of the United States of America, the laws of the state of New York, and the Business Corporation Act of the state of New Jersey. On the basis of the foregoing examination and review, I advise you that, in my opinion: 1. The Corporation is a corporation duly organized and existing under the laws of the state of New Jersey. 2. All necessary corporate action on the part of the Corporation has been taken to authorize the issuance of the Shares, and, when issued as described in the Registration Statement, the Shares will be legally and validly issued, fully paid, and nonassessable. 15 2 The opinions expressed herein are rendered only to you and are solely for your benefit and may not be relied upon by any person, firm, or corporation for any reason without my prior written consent. I consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent I do not admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Bert I Weinstein ------------------------- Bert I. Weinstein 16 EX-24 3 CERTIFIED RESOLUTION OF BOARD OF DIRECTORS & POA 1 EXHIBIT 24 CERTIFIED RESOLUTION OF BOARD OF DIRECTORS I, Dolores O. Rosinski, Senior Assistant Secretary of Merck & Co., Inc., a Corporation duly organized and existing under the laws of the State of New Jersey, do hereby certify that the following is a true copy of a resolution adopted on December 17, 1996, at a meeting of the Directors of said Corporation held in the City of New York, State of New York, duly called in accordance with the provisions of the By-Laws of said Corporation, and at which a quorum of Directors was present: RESOLVED, that the Stock Option Agreements dated December 15, 1993 and April 28, 1996 with John F. Flood and the Warrant Agreement dated December 20, 1991 with Sutro & Co., (collectively, the "Option Agreements") are hereby adopted in the form presented to this meeting; RESOLVED, that the Systemed, Inc. 1993 Employee Stock Option Plan, the Systemed, Inc. 1993 NonEmployee Director Stock Option Plan and the Systemed, Inc. NonQualified Stock Option Plan - 1986 (collectively, the "Option Plans") are hereby adopted in the forms presented to this meeting; provided, however, that such approval is subject to and contingent upon each such Option Plan being amended to provide (i) that such plan be administered and amended by the Compensation and Benefits Committee of the Board of Directors of Merck & Co., Inc. with respect to persons subject to Section 16 (b) of the Securities Exchange Act of 1934, (ii) that such plan be administered and amended with respect to persons who are not subject to Section 16 (b) of the Securities Exchange Act of 1934 by the Chief Executive Officer of Merck & Co., Inc. (the "Company") (iii) that the Chief Executive Officer of the Company may delegate such administration and right to amend to those persons that he or she deems appropriate and (iv) that no option may be granted under such plan to any person on or after the date hereof; RESOLVED, that the proper officers of the Company are hereby authorized and directed on behalf of the Company to prepare, execute and file with the Securities and Exchange Commission (the "SEC") Registration Statements and any and all amendments thereto, and any and all exhibits and other documents relating thereto or required by law or 17 2 regulation in connection therewith, for the registration under the Securities Act of 1933 of the shares of Common Stock of the Company which may be purchased under the Option Agreements and Option Plans (collectively, the "Plans"); RESOLVED, that Celia A. Colbert is hereby appointed and designated the person duly authorized to receive communication and notices from the SEC with respect to such Registration Statements or any amendments thereto and as agent for service of process; RESOLVED, that each officer, director or employee of the Company who may be required to execute such Registration Statements or any amendments thereto (whether on behalf of the Company, or as an officer or director thereof, or by attesting the seal of the Company, or on behalf of the Plans, or otherwise), is hereby authorized to execute a power of attorney appointing Celia A. Colbert and Mary M. McDonald, and each of them severally, his or her true and lawful attorney or attorneys to execute in his or her name, place and stead (in any such capacity) such Registration Statements and any and all amendments thereto and any and all exhibits and other documents necessary or incidental in connection therewith, and to file the same with the SEC, each of said attorneys to have power to act with or without the other, and to have full power and authority to do and perform in the name and on behalf of each of said officers, directors and employees, or any of them, as the case may be, every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any such officer, director or employee might or could do in person; RESOLVED, that the proper officers of the Company are hereby authorized and directed to arrange with the New York Stock Exchange and the Philadelphia Stock Exchange for the listing of the additional shares of the Common Stock of the Company to be issued in connection with the Plans; and RESOLVED, that the proper officers of the Company, with the advice of counsel, are hereby authorized to take any action and to execute and deliver any letters, documents, agreements or other instruments as they deem necessary, appropriate or desirable to carry out the purposes and intents of this Special Resolution. IN WITNESS WHEREOF, I have hereunto subscribed my signature and affixed the seal of the Corporation this 17th day of December, 1996. /s/ Dolores O. Rosinski --------------------------- Dolores O. Rosinski [Corporate Seal] Senior Assistant Secretary 18 3 EXHIBIT 24 POWER OF ATTORNEY Each of the undersigned does hereby appoint CELIA A. COLBERT and MARY M. McDONALD, and each of them severally, to be his or her true and lawful attorney or attorneys to execute on behalf of the undersigned (whether on behalf of Merck & Co., Inc., or as an officer or director thereof, or by attesting the seal of the Company, or otherwise) Registration Statements in connection with the registration under the Securities Act of 1933, as amended, of shares of Common Stock of Merck & Co., Inc. which may be issued pursuant to the plans covered by this Registration Statement, including amendments thereto and all other documents in connection therewith. IN WITNESS WHEREOF, this instrument has been duly executed as of the 17th day of December, 1996. MERCK & CO., INC. By /s/ Raymond V. Gilmartin ------------------------------------ Raymond V. Gilmartin Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer; Director) /s/ Judy C. Lewent Senior Vice President and Chief Financial Officer - ----------------------- (Principal Financial Officer) Judy C. Lewent /s/ Peter E. Nugent Vice President, Controller - ----------------------- (Principal Accounting Officer) Peter E. Nugent DIRECTORS /s/ H. Brewster Atwater, Jr. /s/ Lloyd C. Elam - ---------------------------- ------------------------ H. Brewster Atwater, Jr. Lloyd C. Elam /s/ Derek Birkin /s/ Charles E. Exley - ---------------------------- ------------------------ Derek Birkin Charles E. Exley 19 4 /s/ Lawrence A. Bossidy /s/ William N. Kelley - ---------------------------- ------------------------ Lawrence A. Bossidy William N. Kelley /s/ William G. Bowen /s/ Samuel O. Thier - ---------------------------- ------------------------ William G. Bowen Samuel O. Thier /s/ Carolyne K. Davis /s/ Dennis Weatherstone - ---------------------------- ------------------------ Carolyne K. Davis Dennis Weatherstone 20 -----END PRIVACY-ENHANCED MESSAGE-----