-----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, Ucpj5ROFEkuef+9a7mDvHU34ccsgqj/NxWKgOJHPd7MhpkJpksqvpUAYip9upmXz n1RcvMJXY4twdZlwOmzCXg== /in/edgar/work/20000628/0000950123-00-006135/0000950123-00-006135.txt : 20000920 0000950123-00-006135.hdr.sgml : 20000920 ACCESSION NUMBER: 0000950123-00-006135 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20000628 EFFECTIVENESS DATE: 20000628 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MERCK & CO INC CENTRAL INDEX KEY: 0000064978 STANDARD INDUSTRIAL CLASSIFICATION: [2834 ] IRS NUMBER: 221109110 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-40282 FILM NUMBER: 662811 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 s-8.txt MERCK & CO., INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28, 2000 REGISTRATION NO. 333-________ ================================================================================ 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 registrant as specified in its charter) NEW JERSEY 22-1109110 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number)
P.O. BOX 100 ONE MERCK DRIVE WHITEHOUSE STATION, NJ 08889-0100 (Address of principal executive offices) PROVANTAGE HEALTH SERVICES, INC. 1999 STOCK INCENTIVE PLAN (Full title of the plan) CELIA A. COLBERT VICE PRESIDENT, 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, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
===================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 per share (the "Common Stock") 150,939 shares (1) $72.2813 (2) $10,910,067.14 (2) $2,880.26 =====================================================================================================================
(1) Based on an estimate of the number of shares that will be purchased pursuant to the ProVantage Health Services, Inc. 1999 Stock Incentive Plan. Pursuant to Rule 416(c) of the Securities Act of 1933, as amended (the "Securities Act"), there is also being registered such number of additional shares that may become available for purchase pursuant to such plan in the event of certain changes in the outstanding shares, including reorganizations, mergers, recapitalizations, restructurings, stock dividends, stock splits, reverse stock splits and reclassifications. (2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act, solely for the purpose of calculating the registration fee, based upon the average of the high and low sales prices of shares of Common Stock on June 22, 2000, as reported on the New York Stock Exchange. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) promulgated under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the "Commission"). Merck & Co., Inc. (the "Registrant") hereby files this Registration Statement on Form S-8 registering 150,939 shares of Common Stock issuable upon the exercise of options granted under the ProVantage Health Services, Inc. 1999 Stock Incentive Plan (the "Plan"). These options were converted from options to acquire the common stock of ProVantage Health Services, Inc. ("ProVantage") into options to acquire Common Stock pursuant to the merger of a subsidiary of the Registrant with and into ProVantage, as set forth in the Agreement and Plan of Merger dated as of May 4, 2000, to which the Registrant is a party. 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 Commission are incorporated herein and made a part hereof: (a) Annual Report on Form 10-K, filed on March 22, 2000, for the fiscal year ended December 31, 1999; (b) Quarterly Report on Form 10-Q, filed on May 12, 2000, for the quarterly period ended March 31, 2000; (c) Form 10-K/A, filed on June 27, 2000, amending the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1999; and (d) The description 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. All reports and other documents filed by the Registrant pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, hereby are incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. An Exhibit Index can be found on page 9 of this Registration Statement. 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 of this Registration Statement 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 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 Celia A. Colbert, Vice President, Secretary and Assistant General Counsel of the Company. 2 3 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 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 a knowing violation of law or (c) resulted in receipt by the director or officer of an improper personal benefit. The Registrant'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 Registrant shall not be personally liable to the Registrant or its stockholders for damages for breach of any duty owed to the Registrant 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 Registrant 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. The By-Laws of the Registrant provide that a former, present or future director, officer or employee of the Registrant or the legal representative of any such director, officer or employee shall be indemnified by the Registrant: (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 Registrant) 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 Registrant, 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 counsel to whom the question may be referred by the Board of Directors; provided, 3 4 however, in connection with any proceeding by or in the right of the Registrant, no indemnification shall be provided as to any person adjudged by any court to be liable to the Registrant except as and to the extent determined by such court. The Registrant enters into indemnification agreements with its directors and officers and enters into insurance agreements on its own behalf. The indemnification agreements provide that the Registrant 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 Registrant 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 Registrant, or are or were serving, shall serve, or shall have served, at the request of the Registrant, as director or officer of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. 4 5 ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 3(a) Restated Certificate of Incorporation of the Registrant (May 6, 1992) (incorporated by reference to Form 10-K Annual Report for the fiscal year ended December 31, 1992) 3(b) Certificate of Amendment to the Certificate of Incorporation of the Registrant (as amended January 14, 1999, effective February 16, 1999) (incorporated by reference to Form 10-K Annual Report for the fiscal year ended December 31, 1998) 3(c) By-laws of the Registrant (as amended effective February 25, 1997) (incorporated by reference to Form 10-Q Quarterly Report for the period ended March 31, 1997) 4 ProVantage Health Services, Inc. 1999 Stock Incentive Plan 5 Opinion of Counsel of Celia A. Colbert, Vice President, Secretary and Assistant General Counsel of the Company 23 Consent of Arthur Andersen LLP 24 Certified Resolution of Board of Directors and Power of Attorney
ITEM 9. UNDERTAKINGS 1. The undersigned Registrant hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement 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. (b) That, for the purpose of determining any liability under the Securities Act, 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 the purpose of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 5 6 3. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission 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 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. 6 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Whitehouse Station and the State of New Jersey, on this 28th day of June, 2000. MERCK & CO., INC. By: /s/ Celia A. Colbert -------------------------------------------- Name: Celia A. Colbert Title: Vice President, Secretary and Assistant General Counsel Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ---------------------------------------------- -------------------------------------- ------------- * Chairman of the Board, President and June 28, 2000 - ---------------------------------------------- Chief Executive Officer (principal Raymond V. Gilmartin executive officer) * Senior Vice President and Chief June 28, 2000 - ---------------------------------------------- Financial Officer (principal financial Judy C. Lewent officer) * - ---------------------------------------------- Vice President, Controller (principal June 28, 2000 Richard C. Henriques, Jr. accounting officer) * Director June 28, 2000 - ---------------------------------------------- H. Brewster Atwater, Jr. * Director June 28, 2000 - ---------------------------------------------- Lawrence A. Bossidy * Director June 28, 2000 - ---------------------------------------------- William G. Bowen * Director June 28, 2000 - ---------------------------------------------- Johnnetta B. Cole
* 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 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. 7 8 * Director June 28, 2000 - ---------------------------------------------- Lloyd C. Elam * Director June 28, 2000 - ---------------------------------------------- Niall FitzGerald * Director June 28, 2000 - ---------------------------------------------- William N. Kelley * Director June 28, 2000 - ---------------------------------------------- Anne M. Tatlock * Director June 28, 2000 - ---------------------------------------------- Dennis Weatherstone
* 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 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 ------------------------------------------- Name: Celia A. Colbert Title: Vice President, Secretary and Assistant General Counsel Attorney-in-Fact 8 9 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION OF EXHIBIT - ----------- ---------------------- 3(a) Restated Certificate of Incorporation of the Registrant (May 6, 1992) (incorporated by reference to Form 10-K Annual Report for the fiscal year ended December 31, 1992) 3(b) Certificate of Amendment to the Certificate of Incorporation of the Registrant (as amended January 14, 1999, effective February 16, 1999) (incorporated by reference to Form 10-K Annual Report for the fiscal year ended December 31, 1998) 3(c) By-laws of the Registrant (as amended effective February 25, 1997) (incorporated by reference to Form 10-Q Quarterly Report for the period ended March 31, 1997) 4 ProVantage Health Services, Inc. 1999 Stock Incentive Plan 5 Opinion of Counsel of Celia A. Colbert, Vice President, Secretary and Assistant General Counsel of the Registrant 23 Consent of Arthur Andersen LLP 24 Certified Resolution of Board of Directors and Power of Attorney
9 EX-4 2 ex4.txt 1999 STOCK INCENTIVE PLAN 1 Exhibit 4 PROVANTAGE HEALTH SERVICES, INC. 1999 STOCK INCENTIVE PLAN SECTION 1 GENERAL 1.1. Purpose. The ProVantage Health Services, Inc. 1999 Stock Incentive Plan (the "Plan") has been established by ProVantage Health Services, Inc. (the "Company") (i) to attract and retain high quality individuals eligible to participate in the Plan; (ii) to motivate Participants, by means of appropriate incentives, to achieve long-range goals; (iii) to provide incentive compensation opportunities that are competitive with those of other similar companies; and (iv) to further align Participants' interests with those of the Company's shareholders through compensation that is based on the Company's common stock; and thereby promote the long-term financial interests of the Company and the Related Companies, including the growth in value of the Company's equity and enhancement of long-term shareholder return. 1.2. Participation. Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the Eligible Employees and the Eligible Directors, those persons who will be granted one or more Awards under the Plan, and thereby become "Participants" in the Plan. In the discretion of the Committee, a Participant may be granted any Award permitted under the provisions of the Plan, and more than one Award may be granted to a Participant. Awards may be granted as alternatives to or replacement of awards outstanding under the Plan, or any other plan or arrangement of the Company or a Related Company (including a plan or arrangement of a business or entity, all or a portion of which is acquired by the Company or a Related Company). 1.3. Operation and Administration. The operation and administration of the Plan, including the Awards made under the Plan, shall be subject to the provisions of Section 4 (relating to operation and administration). Subject to subsection 5.5 (relating to the Board's authority), the authority to control and manage the operation and administration of the Plan shall be vested in a committee of the Board (the "Committee") in accordance with Section 5. 1.4. Definitions. Capitalized terms used herein which are not defined where such terms first appear shall be defined as set forth in Section 7. SECTION 2 OPTIONS 2.1. Options. The grant of an "Option" entitles the Participant to purchase shares of Stock at an Exercise Price established by the Committee. Options granted under this Section 2 may be either Incentive Stock Options or Non-Qualified Stock Options, as determined in the discretion of the Committee. An "Incentive Stock Option" is an Option that is intended to satisfy the requirements applicable to an "incentive stock option" described in section 422(b) of the Code. A "Non-Qualified Option" is an Option that is not intended to be an "incentive stock option" as that term is described in section 422(b) of the Code. - 1 - 2 2.2. Exercise Price. The "Exercise Price" of each Option granted under this Section 2 shall be established by the Committee; except that the Exercise Price shall not be less than 100% of the Fair Market Value of a share of Stock as of the Pricing Date. For purposes of the preceding sentence, the "Pricing Date" shall be the date on which the Option is granted. 2.3. Exercise. An Option shall be exercisable in accordance with such terms and conditions and during such periods as may be established by the Committee. 2.4. Payment of Option Exercise Price. The payment of the Exercise Price of an Option granted under this Section 2 shall be subject to the following: (a) Subject to the following provisions of this subsection 2.4, the full Exercise Price for shares of Stock purchased upon the exercise of any Option shall be paid at the time of such exercise (except that, in the case of an exercise arrangement approved by the Committee and described in subsection 2.4(c), payment may be made as soon as practicable after the exercise). (b) The Exercise Price shall be payable in cash or by tendering shares of Stock (by either actual delivery of shares or by attestation, with such shares valued at Fair Market Value as of the day of exercise), or in any combination thereof, as determined by the Committee. (c) The Committee may permit a Participant to elect to pay the Exercise Price upon the exercise of an Option by authorizing a third party to sell shares of Stock (or a sufficient portion of the shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise. 2.5. Expiration Date. The "Expiration Date" with respect to an Option means the date established as the Expiration Date by the Committee at the time of the grant; provided, however, that the Expiration Date with respect to any Option shall not be later than the earliest to occur of: (a) the tenth anniversary of the date on which the Option is granted; (b) if the Participant is an Eligible Employee and the Participant's Date of Termination occurs by reason of death or Disability, the first anniversary of such Date of Termination; (c) if the Participant is an Eligible Employee and the Participant's Date of Termination occurs by reason of Retirement, the second anniversary of such Date of Termination; (d) if the Participant is an Eligible Employee and the Participant's Date of Termination occurs for reasons other than Retirement, death or Disability, the 90-day anniversary of such Date of Termination; or (e) if the Participant is an Eligible Director, the third anniversary of the Participant's Date of Termination. Notwithstanding the foregoing provisions of this subsection 2.5, if the Participant dies while the Option is otherwise exercisable, the Expiration Date may be later than the dates set forth above, provided that it is not later than the first anniversary of the date of death. 2.6. Settlement of Award. The distribution following exercise of an Option of shares of Stock, shall be subject to such conditions, restrictions and contingencies as the Committee may establish. The - 2 - 3 Committee, in its discretion, may impose such conditions, restrictions and contingencies with respect to shares of Stock acquired pursuant to the exercise of an Option as the Committee determines to be desirable. SECTION 3 OTHER STOCK AWARDS 3.1. Definition. A Stock Award is a grant of shares of Stock or of a right to receive shares of Stock (or their cash equivalent or a combination of both) in the future. 3.2. Restrictions on Stock Awards. Each Stock Award shall be subject to such conditions, restrictions and contingencies as the Committee shall determine. These may include continuous service and/or the achievement of performance measures. The Committee may designate a single goal criterion or multiple goal criteria for performance measurement purposes, with the measurement based on absolute Company or business unit performance and/or on performance as compared with that of other publicly-traded companies. The performance measures for such awards may include: stock price, total shareholder return, earnings, earnings per share, return on equity, and return on assets. The Committee may define the performance measures, including, without limitation, defining such performance measures to exclude non-recurring or extraordinary terms or events. SECTION 4 OPERATION AND ADMINISTRATION 4.1. Effective Date. The Plan shall be effective as of the date it is approved by the Company's shareholders (the "Effective Date"). The Plan shall be unlimited in duration and, in the event of Plan termination, shall remain in effect as long as any Awards under it are outstanding; provided, however, that, to the extent required by the Code, no Incentive Stock Options may be granted under the Plan on a date that is more than ten years from the date the Plan is adopted or, if earlier, the date the Plan is approved by shareholders. 4.2. Shares Subject to Plan. (a) (i) Subject to the following provisions of this subsection 4.2, the maximum number shares of Stock that may be delivered to Participants and their beneficiaries under the Plan shall be 1,750,000 shares of Stock. (ii) Any shares of Stock granted under the Plan that are forfeited because of the failure to meet an Award contingency or condition shall again be available for delivery pursuant to new Awards granted under the Plan. To the extent any shares of Stock covered by an Award are not delivered to a Participant or beneficiary because the Award is forfeited or canceled, such shares shall not be deemed to have been delivered for purposes of determining the maximum number of shares of Stock available for delivery under the Plan. (b) Subject to subsection 4.2(c), the following additional maximums are imposed under the Plan. (i) The maximum number of shares of Stock that may be issued by Options intended to be Incentive Stock Options shall be 500,000 shares. - 3 - 4 (ii) The maximum number of shares that may be covered by Awards granted to any one individual pursuant to Section 2 (relating to Options) shall be 500,000 shares in any one calendar year. (iii) The maximum payment that can be made for awards granted to any one individual pursuant to Section 3 (relating to Stock Awards) shall be $5,000,000. If an Award granted under Section 3 is, at the time of grant, denominated in shares, the value of the shares of Stock for determining this maximum individual payment amount will be the Fair Market Value of a share of Stock on the date of grant multiplied by the number of shares granted. (c) In the event of a corporate transaction involving the Company including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination or exchange of shares), the Committee may adjust Awards to preserve the benefits or potential benefits of the Awards. Action by the Committee may include adjustment of: (i) the number and kind of shares which may be delivered under the Plan; (ii) the number and kind of shares subject to outstanding Awards; and (iii) the Exercise Price of outstanding Options; as well as any other adjustments that the Committee determines to be equitable. 4.3. Acceleration on Change of Control. Subject to the provisions of subsection 4.2(c) (relating to the adjustment of shares), and except as otherwise provided in the Plan or the Agreement reflecting the applicable Award, upon the occurrence of a Change of Control: (a) All outstanding Options shall become fully exercisable. (b) All Stock Awards shall become fully vested. 4.4. Limit on Distribution. Distribution of shares of Stock or other amounts under the Plan shall be subject to the following: (a) Notwithstanding any other provision of the Plan, the Company shall have no liability to deliver any shares of Stock under the Plan or make any other distribution of benefits under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act of 1933), and the applicable requirements of any securities exchange or similar entity. (b) To the extent that the Plan provides for issuance of stock certificates to reflect the issuance of shares of Stock, the issuance may be effected on a noncertificated basis, to the extent not prohibited by applicable law or the applicable rules of any stock exchange. 4.5. Tax Withholding. Whenever the Company proposes or is required to distribute Stock under the Plan, the Company may require the recipient to remit to the Company an amount sufficient to satisfy any Federal, state and local tax withholding requirements prior to the delivery of any certificate for such shares or, in the discretion of the Committee, the Company may withhold from the shares to be delivered shares sufficient to satisfy all or a portion of such tax withholding requirements. Whenever under the Plan payments are to be made in cash, such payments may be net of an amount sufficient to satisfy any Federal, state and local tax withholding requirements. 4.6. Payment Shares. Subject to the overall limitation on the number of shares of Stock that may be delivered under the Plan, the Committee may use available shares of Stock as the form of payment for compensation, grants or rights earned or due under any other compensation plans or arrangements of the - 4 - 5 Company or a Related Company, including the plans and arrangements of the Company or a Related Company acquiring another entity (or an interest in another entity). 4.7. Dividends and Dividend Equivalents. An Award may provide the Participant with the right to receive dividends or dividend equivalent payments with respect to Stock which may be either paid currently or credited to an account for the Participant, and may be settled in cash or Stock as determined by the Committee. Any such settlements, and any such crediting of dividends or dividend equivalents or reinvestment in shares of Stock, may be subject to such conditions, restrictions and contingencies as the Committee shall establish, including the reinvestment of such credited amounts in Stock equivalents. 4.8. Transferability. Except as otherwise provided by the Committee or in the Agreement reflecting the applicable Award, Awards under the Plan are not transferable except as designated by the Participant by will or by the laws of descent and distribution. 4.9. Form and Time of Elections. Unless otherwise specified herein, each election required or permitted to be made by any Participant or other person entitled to benefits under the Plan, and any permitted modification, or revocation thereof, shall be in writing filed with the Committee at such times, in such form, and subject to such restrictions and limitations, not inconsistent with the terms of the Plan, as the Committee shall require. 4.10. Agreement With Company. At the time of an Award to a Participant under the Plan, the Committee may require a Participant to enter into an agreement with the Company (the "Agreement") in a form specified by the Committee, agreeing to the terms and conditions of the Plan and to such additional terms and conditions, not inconsistent with the Plan, as the Committee may, in its sole discretion, determine. 4.11. Limitation of Implied Rights. (a) Neither a Participant nor any other person shall, by reason of the Plan, acquire any right in or title to any assets, funds or property of the Company or any Related Company whatsoever, including, without limitation, any specific funds, assets, or other property which the Company or any Related Company, in their sole discretion, may set aside in anticipation of a liability under the Plan. A Participant shall have only a contractual right to the stock or amounts, if any, payable under the Plan, unsecured by any assets of the Company or any Related Company. Nothing contained in the Plan shall constitute a guarantee that the assets of such companies shall be sufficient to pay any benefits to any person. (b) The Plan does not constitute a contract of employment, and selection as a Participant will not give any employee the right to be retained in the employ of the Company or any Related Company, nor any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan. Selection as a Participant will not give any director the right to be retained or nominated as a director of the Company or any Related Company. Except as otherwise provided in the Plan, no Award under the Plan shall confer upon the holder thereof any right as a shareholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights. 4.12. Evidence. Evidence required of anyone under the Plan may be by certificate, affidavit, document or other information which the person acting on it considers pertinent and reliable, and signed, made or presented by the proper party or parties. - 5 - 6 4.13. Action by Company or Related Company. Any action required or permitted to be taken by the Company or any Related Company shall be by resolution of its board of directors, or by action of one or more members of the board (including a committee of the board) who are duly authorized to act for the board, or (except to the extent prohibited by applicable law or applicable rules of any stock exchange) by a duly authorized officer of the Company. 4.14. Gender and Number. Where the context admits, words in any gender shall include any other gender, words in the singular shall include the plural and the plural shall include the singular. SECTION 5 COMMITTEE 5.1. Selection of Committee. The Committee shall be selected by the Board, and shall consist of two or more members of the Board. 5.2. Powers of Committee. The authority to manage and control the operation and administration of the Plan shall be vested in the Committee, subject to subsection 5.5 hereof and to the following: (a) Subject to the provisions of the Plan, the Committee will have the authority and discretion to select from among the Eligible Employees and the Eligible Directors those persons who shall receive Awards, to determine the time or times of receipt, to determine the types of Awards and the number of shares covered by the Awards, to establish the terms, conditions, performance criteria, restrictions, and other provisions of such Awards, and (subject to the restrictions imposed by Section 6) to cancel or suspend Awards. In making such Award determinations, the Committee may take into account the nature of services rendered by the individual, the individual's present and potential contribution to the Company's success and such other factors as the Committee deems relevant. (b) Subject to the provisions of the Plan, the Committee will have the authority and discretion to determine the extent to which Awards under the Plan will be structured to conform to the requirements applicable to performance-based compensation as described in Code section 162(m), and to take such action, establish such procedures, and impose such restrictions at the time such Awards are granted as the Committee determines to be necessary or appropriate to conform to such requirements. (c) The Committee will have the authority and discretion to establish terms and conditions of Awards as the Committee determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the United States. (d) The Committee will have the authority and discretion to interpret the Plan, to establish, amend, and rescind any rules and regulations relating to the Plan, to determine the terms and provisions of any agreements made pursuant to the Plan, and to make all other determinations that may be necessary or advisable for the administration of the Plan. (e) Any interpretation of the Plan by the Committee and any decision made by it under the Plan is final and binding. (f) In controlling and managing the operation and administration of the Plan, the Committee shall act by a majority of its then members, by meeting or by writing filed without a meeting. The Committee - 6 - 7 shall maintain and keep adequate records concerning the Plan and concerning its proceedings and acts in such form and detail as the Committee may decide. 5.3. Delegation by Committee. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. 5.4. Information to be Furnished to Committee. The Company and Related Companies shall furnish the Committee with such data and information as may be required for it to discharge its duties. The records of the Company and Related Companies as to an employee's or Participant's employment, termination of employment, leave of absence, reemployment and compensation shall be conclusive on all persons unless determined to be incorrect. Participants and other persons entitled to benefits under the Plan must furnish the Committee such evidence, data or information as the Committee considers desirable to carry out the terms of the Plan. 5.5. Board Administration. The Board shall have the authority to exercise all of the powers of the Committee under the Plan (i) prior to the establishment of the Committee, (ii) at such other times as the Board determines, and (iii) with respect to any Award to an Eligible Director. The determination by the Board to make an Award to an Eligible Director shall not limit the authority of the Committee to also make Awards to Eligible Directors. SECTION 6 AMENDMENT AND TERMINATION The Board may, at any time, amend or terminate the Plan; provided, however, that (a) subject to subsection 4.2(c) (relating to the adjustments of shares), no amendment or termination may, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely affect the rights of any Participant or beneficiary under any Award granted under the Plan prior to the date such amendment is adopted by the Board; and (b) without further approval of the shareholders of the Company, no amendment shall materially increase the number of shares of Stock which may be delivered pursuant to Awards hereunder, except for increases resulting from subsection 4.2(c) (relating to the adjustment of shares). SECTION 7 DEFINED TERMS For purposes of the Plan, the terms listed below shall be defined as follows: (a) Award. The term "Award" shall mean any award or benefit granted to any Participant under the Plan, including, without limitation, the grant of Options and Stock Awards. (b) Board. The term "Board" shall mean the Board of Directors of the Company. - 7 - 8 (c) Change of Control. The term "Change of Control" shall mean any of the following events: (1) individuals who, as of the date hereof, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then constituting the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of: (A) an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board, or (B) a Control Acquisition (as defined below); or (2) consummation of a reorganization, merger, statutory share exchange, or consolidation or sale or other disposition of all or substantially all of the assets of the Company for which approval of the shareholders of the Company is required (a "Business Combination"), in each case, unless, immediately following such Business Combination, (A) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the then outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") and the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities") immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company's assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended) (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding Common Stock of the Corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the Board of Directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or (3) approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. (d) Control Acquisition. A "Control Acquisition" means the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either (i) the then outstanding shares of common stock of the Company (the "Outstanding Company Common Stock") or (ii) the combined voting - 8 - 9 power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding Company Voting Securities"); provided, however, that the following acquisitions shall not constitute a Control Acquisition: (i) any acquisition directly from the Company (including, without limitation, any acquisition through an underwritten public offering of the Company's securities by the Company), (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, (iv) any acquisition by ShopKo Stores, Inc., a Wisconsin corporation ("ShopKo"), or any corporation controlled by ShopKo, or any employee benefit plan (or related trust) sponsored or maintained by ShopKo or any corporation controlled by ShopKo, (v) any acquisition pursuant to a public distribution of the Company's securities as a dividend to ShopKo's shareholders, or (vi) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of Section 7(c)(2) above. (e) Code. The term "Code" means the Internal Revenue Code of 1986, as amended. A reference to any provision of the Code shall include reference to any successor provision of the Code. (f) Date of Termination. (1) With respect to a Participant who is an Eligible Employee, the Participant's "Date of Termination" shall be the first day occurring on or after the Agreement Date on which the Participant's employment with the Company and all Related Companies terminates for any reason; provided that a termination of employment shall not be deemed to occur by reason of a transfer of the Participant between the Company and a Related Company or between two Related Companies; and further provided that the Participant's employment shall not be considered terminated while the Participant is on a leave of absence from the Company or a Related Company approved by the Participant's employer. If, as a result of a sale or other transaction, the Participant's employer ceases to be a Related Company (and the Participant's employer is or becomes an entity that is separate from the Company), the occurrence of such transaction shall be treated as the Participant's Date of Termination caused by the Participant being discharged by the employer. (2) With respect to a Participant who is an Eligible Director, the Participant's "Date of Termination" shall be the first day occurring on or after the Agreement Date on which the Participant ceases to be a director of any of the Company and any Related Companies for any reason. (g) Disability. Except as otherwise provided by the Committee, the Participant shall be considered to have a "Disability" during the period in which the Participant is unable, by reason of a medically determinable physical or mental impairment, to engage in any substantial gainful activity, which condition, in the opinion of a physician selected by the Committee, is expected to have a duration of not less than 120 days. (h) Eligible Director. The term "Eligible Director" shall mean any director (or person holding authority comparable to that of a director for business entities which do not have directors) of the Company or a Related Company who is not an employee of the Company or a Related Company. (i) Eligible Employee. The term "Eligible Employee" shall mean any employee of the Company or a Related Company. - 9 - 10 (j) Fair Market Value. For purposes of determining the "Fair Market Value" of a share of Stock, the following rules shall apply: (i) If the Stock is at the time listed or admitted to trading on any stock exchange or in the over-the-counter market, then the "Fair Market Value" shall be the last reported sale price of the Stock on the date in question on the principal exchange on which the Stock is then listed or admitted to trading or in the over-the-counter market, as the case may be. If no reported sale of Stock takes place on the date in question, then the most recent reported sale of the Stock shall be determinative of "Fair Market Value." (ii) If the Stock is not listed or admitted to trading on any stock exchange or traded in the over-the-counter market, the "Fair Market Value" shall be as determined in good faith by the Committee. (k) Related Companies. The term "Related Company" means: (i) any corporation, joint venture, limited liability company, or other business entity in which the Company has a significant direct or indirect equity interest, or (ii) any corporation, joint venture, limited liability company, or other business entity which owns a significant direct or indirect equity interest in the Company, as determined by the Committee in its sole discretion. (l) Retirement. "Retirement" of the Participant shall mean the occurrence of the Participant's Date of Termination after age 55 with ten (10) or more years of service with the Company or a Related Company, or as otherwise expressly approved by the Committee. (m) Stock. The term "Stock" shall mean shares of common stock of the Company. Adopted as of March 12, 1999. - 10 - EX-5 3 ex5.txt OPINION OF COUNSEL OF CELIA A. COLBERT 1 Exhibit 5 June 28, 2000 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 Vice President, Secretary & 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 150,939 shares of the Common Stock, par value $0.01 per share (the "Shares"), of the Corporation, which may be issued by the Corporation pursuant to the ProVantage Health Services, Inc. 1999 Stock Incentive Plan. 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 Bar of the State of New York. 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 non-assessable. 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. By: /s/ Celia A. Colbert -------------------------- Celia A. Colbert EX-23 4 ex23.txt CONSENT OF ARTHUR ANDERSEN 1 EXHIBIT 23 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 26, 2000 included in and incorporated by reference in Merck & Co., Inc.'s Annual Report on Form 10-K, for the fiscal year ended December 31, 1999, as amended by Form 10-K/A dated June 27, 2000 and to all references to our firm included in or made a part of this Registration Statement. ARTHUR ANDERSEN LLP New York, New York June 28, 2000 EX-24 5 ex24.txt CERTIFIED RESOLUTIONS AND POWER OF ATTORNEY 1 EXHIBIT 24 CERTIFIED RESOLUTION OF BOARD OF DIRECTORS I, Debra A. Bollwage, 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 May 22, 2000, at a meeting of the Directors of said Corporation held in Paris, France, 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 upon consummation of the acquisition of ProVantage Health Services, Inc. ("ProVantage"), the ProVantage Health Services, Inc. 1999 Stock Incentive Plan (the "ProVantage Plan") is hereby adopted in the form presented to this meeting with the following changes: (i) that the term "Company" used in such Plan shall mean Merck & Co., Inc.; (ii) that such Plan be administered and amended by the Compensation and Benefits Committee of the Board of Directors of the Company with respect to persons subject to Section 16(b) of the Securities Exchange Act of 1934; (iii) 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 the Company; (iv) 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 (v) that no option or other awards may be granted under such Plan to any person on or after the date of the acquisition of ProVantage; FURTHER RESOLVED, that upon consummation of the acquisition of ProVantage, 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") a Registration Statement and any and all amendments thereto, and any and all exhibits and other documents relating thereto or required by law or 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 ProVantage Plan; FURTHER RESOLVED, that Celia A. Colbert is hereby appointed and designated the person duly authorized to receive communications and notices from the SEC with respect to such Registration Statement or any amendments thereto and as agent for service of process; FURTHER RESOLVED, that each officer, director or employee of the Company who may be required to execute such Registration Statement or any 2 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 ProVantage Plan, or otherwise), is hereby authorized to execute a power of attorney appointing Celia A. Colbert and Kenneth C. Frazier, 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 Statement 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; FURTHER 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 ProVantage Plan; and FINALLY 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 28th day of June, 2000. By: /s/ Debra A. Bollwage --------------------------- Debra A. Bollwage Assistant Secretary [Corporate Seal] 3 EXHIBIT 24 POWER OF ATTORNEY Each of the undersigned does hereby appoint CELIA A. COLBERT and KENNETH C. FRAZIER, 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) a Registration Statement 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 plan 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 22nd day of May, 2000. MERCK & CO., INC. By: /s/ Raymond V. Gilmartin ------------------------------------- Raymond V. Gilmartin Chairman of the Board, President & Chief Executive Officer /s/ Judy C. Lewent ------------------------------------- Judy C. Lewent Senior Vice President & Chief Financial Officer (Principal Financial Officer) /s/ Richard C. Henriques, Jr. ------------------------------------- Richard C. Henriques, Jr. Vice President, Controller (Principal Accounting Officer) 4 DIRECTORS /s/ H. Brewster Atwater, Jr. /s/ Niall FitzGerald ------------------------------ -------------------------- H. Brewster Atwater, Jr. Niall FitzGerald /s/ Lawrence A. Bossidy /s/ William N. Kelley ------------------------------ -------------------------- Lawrence A. Bossidy William N. Kelley /s/ William G. Bowen /s/ Anne M. Tatlock ------------------------------ -------------------------- William G. Bowen Anne M. Tatlock /s/ Johnnetta B. Cole /s/ Dennis Weatherstone ------------------------------ -------------------------- Johnnetta B. Cole Dennis Weatherstone /s/ Lloyd C. Elam ------------------------------ Lloyd C. Elam
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