-----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, WEHUzVjozheJfgzKpkEhjFABy/BlzcVq0FXzgNDTZm5tdkV4uj2enLRmzy4LNDlE sE8OEkEYfSy8mxrqxcGmKA== 0000950123-02-011396.txt : 20021127 0000950123-02-011396.hdr.sgml : 20021127 20021127125113 ACCESSION NUMBER: 0000950123-02-011396 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20021127 EFFECTIVENESS DATE: 20021127 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: 333-101519 FILM NUMBER: 02842782 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 y66126dsv8.txt MERCK & CO INC. AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 27, 2002 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) P.O. BOX 100 ONE MERCK DRIVE WHITEHOUSE STATION, NEW JERSEY 08889 (Address of Principal Executive Offices) NEW JERSEY 22-1109110 (State of Incorporation) (I.R.S. Employer Identification Number) MERCK & CO., INC. DEFERRAL PROGRAM (Full Title of the Plan) CELIA A. COLBERT, ESQ. VICE PRESIDENT, SECRETARY AND ASSISTANT GENERAL COUNSEL MERCK & CO., INC. P.O. BOX 100 ONE MERCK DRIVE WHITEHOUSE STATION, NEW JERSEY 08889 (908) 423-1000 (Name, Address and Telephone Number 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 (3) REGISTRATION FEE Deferred Compensation Obligations (1) $200,000,000 100% $200,000,000 $18,400 Common Stock, par value $.01 per share (2) 1,000,000 shares (4) $58.80 $ 58,800,000 $ 5,410
(1) The Deferred Compensation Obligations are unsecured obligations of Merck & Co., Inc. to pay deferred compensation in accordance with the terms of the Merck & Co., Inc. Deferral Program. (2) Includes an indeterminate number of shares of Common Stock that may be issuable by reason of stock splits, stock dividends or similar transactions in accordance with Rule 416 under the Securities Act of 1933. (3) The prices stated above are estimated solely for the purpose of determining the registration fee and is based on the average of the high and low market prices of the stock as reported on the New York Stock Exchange listed issues on November 21, 2002. (4) Estimated maximum number of shares of Common Stock of Merck & Co., Inc. issuable during the next five years of operation of the Merck & Co., Inc. Deferral Program. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents and any future filings made with the Securities and Exchange Commission (Exchange Act File No. 1-3305) are incorporated herein by reference: (a) Current Report on Form 8-K filed on January 30, 2002; (b) Current Report on Form 8-K filed on March 5, 2002 (amended by a Form 8-K/A filed on March 21, 2002); (c) Annual Report on Form 10-K filed on March 21, 2002, for the fiscal year ended December 31, 2001; (d) Proxy Statement filed on March 21, 2002, for the Annual Meeting of Stockholders held on April 23, 2002; (e) Quarterly Report on Form 10-Q filed on May 13, 2002, for the quarter ended March 31, 2002; (f) Form 11-K Annual Report filed on June 27, 2002, for the fiscal year ended December 31, 2001; (g) Quarterly Report on Form 10-Q filed on August 13, 2002, for the quarter ended June 30, 2002; (h) Quarterly Report on Form 10-Q filed on November 13, 2002, for the quarter ended September 30, 2002; (i) The descriptions of the Common Stock of the registrant set forth in the registrant's Registration Statements pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act"), and any amendment or report filed for the purpose of updating such description. The Company's consolidated financial statements for each of the years ended 2001, 2000 and 1999, included in the Company's Form 10-K and incorporated by reference herein, have been audited by Arthur Andersen LLP ("Arthur Andersen"). On February 26, 2002, the Company dismissed Arthur Andersen as its independent public accountants and engaged PricewaterhouseCoopers LLP to serve as the Company's independent public accountants for the fiscal year 2002. The Company understands that the staff of the Securities and Exchange Commission has taken the position that it will not accept consents from Arthur Andersen if the engagement partner and the manager for the Company's audit are no longer with Arthur Andersen. Both the engagement partner and the manager for the Company's audit are no longer with Arthur Andersen and Arthur Andersen has ceased practicing before the Securities and Exchange Commission. As a result, the Company has been unable to obtain Arthur Andersen's written consent to the incorporation by reference into this registration statement of their audit report with respect to the Company's financial statements. Under these circumstances, Rule 437a under the Securities Act of 1933 (the "Securities Act") permits the Company to file this registration statement without a written consent from Arthur Andersen. Because Arthur Andersen has not consented to the inclusion of their report in this registration statement, Arthur Andersen will not have any liability under Section 11(a) of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Arthur Andersen and incorporated by reference herein or any omission of a material fact required to be stated therein. Accordingly, investors will not be able to assert a claim against Arthur Andersen under Section 11(a) of the Securities Act for any purchases of securities under this registration statement. ITEM 4. DESCRIPTION OF SECURITIES The obligations of the Company registered hereunder (the "Obligations") are unsecured general obligations of the Company to pay the value of deferred compensation accounts in accordance with the terms and conditions of the Merck & Co., Inc. Deferral Program (the "Program"). The following discussion of the Program is not a complete description of the Program and is qualified in its entirety by the full text of the Program. The filing of this Registration Statement on Form S-8 is not, and should not be construed as, an admission that the Obligations constitute securities as defined by any applicable federal, state or local law, or that registration of the Obligations is required under any such law. The Program is a nonqualified deferred compensation plan for eligible members of management (the "Participants") of the Company and its subsidiaries and affiliates. Under the Program, the Company will provide all Participants with the opportunity to defer income earned under various incentive plans of the Company and certain Participants with the opportunity to defer base salary. 3 The Compensation and Benefits Committee of the Board of Directors of the Company is the administrator of the Program. Unless delegated to another party, the administrator of the Program is responsible for determining and periodically reviewing the investment alternatives available under the Program. Amounts deferred pursuant to the Program are credited to a deferred compensation account maintained on behalf of each Participant. A Participant may initially allocate the amounts credited to his or her deferral account among various investment alternatives including the Company's common stock and numerous mutual funds (as determined by the administrator). The Obligations are adjusted to reflect the performance, whether positive or negative, of the selected investment alternatives during the deferral period, in accordance with the terms of the Program. Participants bear the risk that the value of the Company's common stock, as well as that of all other investment alternatives available under the Program, will decrease during the deferral period. The Obligations are general unsecured and unsubordinated obligations of the Company from time to time outstanding. Based on the amount of money allocated to each investment alternative, Participants are credited with the number of full and partial shares of Company stock or other fund that the deferred amount allocated to each alternative would purchase based on the closing price of Company stock or the closing net asset value of the mutual fund, respectively, on the date that the money would otherwise have been paid as base salary or incentive compensation. Company shares and mutual fund shares are not purchased or earmarked for a Participant's account. A Participant's right to the Obligations cannot be transferred, assigned, pledged or encumbered except by a written designation of a beneficiary under the terms of the Program. There is no trading market for the Obligations. Participants may redesignate amounts credited to their deferred compensation accounts among the available investment options in 1% increments at any time. Notwithstanding the foregoing, Participants are generally not permitted to redesignate deferred amounts (i) into common stock of the Company or (ii) out of common stock of the Company other than amounts held in Company stock in excess of three times base salary. As a general rule, at the time of the election to defer compensation, each Participant elects (i) the time at which distribution of his or her account balance will occur and (ii) whether such distribution will be in the form of a lump sum payment or any number of annual installments up to a maximum of 15. Distributions of amounts allocated to mutual funds and partial shares of Company stock will be made in cash and distribution of amounts allocated to full shares of Company stock will generally be made in shares of Company stock. The Obligations are not convertible into securities of the Company, except that Obligations denominated as full shares of Company stock are payable as shares of Company common stock upon distribution. The Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Company. No trustee has been appointed having the authority to take action with respect to the Obligations, and each Participant will be responsible for acting independently with respect to, among other things, the giving of notices, responding to any requests for consents, waivers, or amendments pertaining to the Obligations, enforcing covenants and taking action upon a default. The Company has reserved the right to amend the Program at any time, except that no such amendment shall adversely affect the right of each Participant to the amounts credited to his or her deferred compensation account as of the date of the amendment. 4 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the securities offered pursuant to this Registration Statement will be passed upon for the Company by Celia A. Colbert, Esq., Vice President, Secretary and 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 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 stockholders, 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 stockholders, (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 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 Corporation shall not be personally liable to the Corporation or its stockholders for damages for breach of any duty owed to the Corporation 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 Corporation 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 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 the 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 counsel to whom the 5 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. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. 6 ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION METHOD OF FILING - ----------- ----------- ---------------- 4(a) Restated Certificate of Incorporation of the Incorporated by reference to Form 10-Q Company (September 1, 2000) Quarterly Report for the period ended September 30, 2000 4(b) By-Laws of the Company (as amended February 25, Incorporated by reference to Form 10-Q 1997) Quarterly Report for the period ended March 31, 1997 4(c) Merck & Co., Inc. Deferral Program (restated Filed with this Registration Statement October 15, 2002) 5 Opinion and Consent of Celia A. Colbert, Vice Filed with this Registration Statement President, Secretary & Assistant General Counsel of the Company 23(a) Consent of Arthur Andersen LLP Omitted pursuant to Rule 437a 23(b) Consent of Celia A. Colbert, Vice President, Filed with this Registration Statement Secretary & Assistant General Counsel of the (included on Exhibit 5 hereto) Company 24(a) Certified Resolution of Board of Directors Filed with this Registration Statement 24(b) Power of Attorney Filed with this Registration Statement
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 this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; 7 provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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 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. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by a director, officer or controlling person of the Company 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 8 SIGNATURES Pursuant to the requirements of the Securities Act, the Company 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 Whitehouse Station, State of New Jersey, on the 27th day of November, 2002. MERCK & CO., INC. By: * ------------------------------------------ Raymond V. Gilmartin Chairman of the Board, President and Chief Executive Officer By:/s/ Celia A. Colbert ------------------------------------------ Celia A. Colbert Vice President, Secretary & Assistant General Counsel (Attorney-in-Fact) - --------------------- * Celia A. Colbert, by signing her name hereto, does hereby sign this document pursuant to powers of attorney duly executed by the person named, filed with the SEC as an exhibit to this document, on behalf of such person on the date stated. 9 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, President and Chief November 27, 2002 - ------------------------------------------ Executive Officer; Principal Raymond V. Gilmartin Executive Officer; Director * Executive Vice President and Chief November 27, 2002 - ------------------------------------------ Financial Officer; Principal Judy C. Lewent Financial Officer * Vice President, Controller; Principal November 27, 2002 - ------------------------------------------ Accounting Officer Richard C. Henriques, Jr. * Director November 27, 2002 - ------------------------------------------ Lawrence A. Bossidy * Director November 27, 2002 - ------------------------------------------ William G. Bowen Director November 27, 2002 - ------------------------------------------ Johnnetta B. Cole * Director November 27, 2002 - ------------------------------------------ William M. Daley * Director November 27, 2002 - ------------------------------------------ William B. Harrison, Jr. * Director November 27, 2002 - ------------------------------------------ William N. Kelley * Director November 27, 2002 - ------------------------------------------ Heidi G. Miller
10 * Director November 27, 2002 - ------------------------------------------ Edward M. Scolnick * Director November 27, 2002 - ------------------------------------------ Thomas E. Shenk * Director November 27, 2002 - ------------------------------------------ Anne M. Tatlock * Director November 27, 2002 - ------------------------------------------ Samuel O. Thier
- --------------------- * 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 SEC 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. 11 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION METHOD OF FILING - ----------- ----------- ---------------- 4(a) Restated Certificate of Incorporation of the Incorporated by reference to Form 10-Q Company (September 1, 2000) Quarterly Report for the period ended September 30, 2000 4(b) By-Laws of the Company (as amended February 25, Incorporated by reference to Form 10-Q 1997) Quarterly Report for the period ended March 31, 1997 4(c) Merck & Co., Inc. Deferral Program (restated Filed with this Registration Statement October 15, 2002) 5 Opinion and Consent of Celia A. Colbert, Vice Filed with this Registration Statement President, Secretary & Assistant General Counsel of the Company 23(a) Consent of Arthur Andersen LLP Omitted pursuant to Rule 437a 23(b) Consent of Celia A. Colbert, Vice President, Filed with this Registration Statement Secretary & Assistant General Counsel of the (included on Exhibit 5 hereto) Company 24(a) Certified Resolution of Board of Directors Filed with this Registration Statement 24(b) Power of Attorney Filed with this Registration Statement
12 EX-4.C 3 y66126dexv4wc.txt DEFERRAL PROGRAM ================================================================================ Exhibit 4(c) MERCK & CO., INC. DEFERRAL PROGRAM (Amended July 23, 2002 and September 20, 2002; Restated October 15, 2002) ================================================================================ TABLE OF CONTENTS Page Article I Administration 1 Article II Eligibility 1 Article III Deferral Into a Deferred Compensation Account 1 Article IV Valuation of Deferred Compensation Accounts 2 Article V Redesignation Within a Deferred Compensation Account 4 Article VI Distribution of Deferred Compensation Accounts 6 Article VII Deductions from Distributions 8 Article VIII Beneficiary Designations 8 Article IX Amendments 8 Schedule I Deferral Program Investment Alternatives 9 Schedule II Special Provisions Applicable to Medco Health Employees 10 (i) MERCK & CO., INC. DEFERRAL PROGRAM The Deferral Program ("the Program") is intended to permit a select group of management to defer income which would otherwise be immediately payable to them as annual base salary or under various incentive plans of Merck & Co., Inc. ("the Company"). I. ADMINISTRATION This Program is administered by the Compensation and Benefits Committee of the Company's Board of Directors. This Committee is composed of non-employee directors only. The Committee shall have responsibility for determining which investments will be available under the Program, and those investments shall be listed on Schedule I hereto. The Committee shall review the investment selections at least once every five years. The Committee shall make all decisions affecting the timing, price or amount of any and all of the Deferred Compensation of participants subject to Section 16 of the Securities Exchange Act of 1934, as amended ("Section 16 Officers"), but may otherwise delegate any of its authority under this Program. II. ELIGIBILITY Eligibility to defer under this Program will be determined in accordance with the terms of the Company's Base Salary Deferral Plan and various incentive plans. However, the Committee has the authority to refuse to permit an employee to participate in this Program, if the Committee determines that such participation would jeopardize the Program's compliance with applicable law or the Program's status as a top hat plan under the Employee Retirement Income Security Act. III. DEFERRAL INTO A DEFERRED COMPENSATION ACCOUNT A. Election to Defer ----------------- A participant's decision to defer under the Program must be made, (i) for the Base Salary Deferral Plan, prior to the commencement of the pay period during which the base salary to be deferred will be earned, (ii) for annual incentive plans, prior to the commencement of the performance year during which the bonus monies to be deferred will be earned, and (iii) for long-term incentive plans, prior to the commencement of the last year of the award period during which the bonus monies to be deferred will be earned. For purposes of annual incentive plans only, a participant who is hired by the Company during a performance year may make an election, no later than the thirtieth (30th) day from the participant's date of hire, to defer bonus monies to be earned during such performance year. For the Base Salary Deferral Plan, only amounts equal to or in excess of five percent (5%) of Annual Base Salary (as defined in the Base Salary Deferral Plan) and less than or equal to the lesser of (1) fifty percent (50%) of Annual Base Salary or (2) the Participant's Annual Base Salary in excess of the amount determined under Section 401(a)(17) of the Internal Revenue Code may be deferred. For the annual and long-term incentive plans, only amounts in excess of $3,000 may be deferred. Amounts so deferred are known as "Deferred Compensation" and will be credited to the participant's "Deferred Compensation Account." Deferred Compensation shall be held in one account regardless of the plan (Base Salary Deferral or incentive plan) under which it was deferred. 1 B. Election of Distribution Schedule --------------------------------- 1. Timing of Election The participant shall also elect a distribution schedule for his/her Deferred Compensation. A participant's election of a distribution schedule in connection with a deferral election under annual and/or long-term incentive plans shall be made at the same time that the participant makes the election to defer. A participant's initial election of a distribution schedule in connection with deferrals under the Base Salary Deferral Plan shall be made at the same time as the initial deferral election, shall be irrevocable during the calendar year for which it was made and shall apply to all deferrals of Annual Base Salary until a new distribution election becomes effective. Thereafter, an election of a different distribution schedule in connection with deferrals under the Base Salary Deferral Plan may be made at any time, provided, however, that such new distribution schedule shall only apply prospectively to deferrals of Annual Base Salary in the following calendar year. 2. Distribution Schedule A participant may elect to have payments begin at the participant's actual retirement date, subsequent to that date or prior thereto. A participant may elect a lump sum or a schedule of annual installments, up to a maximum of 15 annual installments. No installment, however, may be payable more than fifteen years after the participant's termination of employment. C. Election of Investment Alternatives ----------------------------------- The participant shall designate, in accordance with procedures established by the Company for such designation, the portion (in multiples of 1%) of the Deferred Compensation to be allocated to any investment alternative available under this Program. IV. VALUATION OF DEFERRED COMPENSATION ACCOUNTS A. Common Stock ------------ 1. Initial Crediting The amount allocated to Merck Common Stock shall be used to determine the number of full and partial shares of Merck Common Stock which such amount would purchase at the closing price of Merck Common Stock on the New York Stock Exchange on the date cash payments of base salary, for amounts deferred under the Base Salary Deferral Plan, or incentive awards, for amounts deferred under the various incentive plans, would otherwise be paid to the participant ("the Deferral Date"). Should the Committee determine that valuation on any Deferral Date would not constitute fair market value, then the Committee shall decide on which date fair market value shall be determined using the valuation method set forth in this paragraph. The Company shall credit the participant's Deferred Compensation Account with the number of full and partial shares of Merck Common Stock so determined. However, at no time prior to the delivery of such shares shall any shares be purchased or earmarked for such Account and the participant shall not have any of the rights of a shareholder with respect to shares credited to his/her Deferred Compensation Account. 2 2. Dividends The Company shall credit the Participant's Deferred Compensation Account with the number of full and partial shares of Merck Common Stock purchasable at the closing price of Merck Common Stock on the New York Stock Exchange as of the date each dividend is paid on the Common Stock, with the dividends which would have been paid on the number of shares credited to such Account (including pro rata dividends on any partial share) had the shares so credited then been issued and outstanding. 3. Redesignations The value of Merck Common Stock for purposes of redesignation shall be the closing price of Merck Common Stock on the New York Stock Exchange on (i) the day when the redesignation request is received pursuant to administrative guidelines established by the Human Resources Financial Services area of the Treasury department, provided the request is received prior to the close of the New York Stock Exchange on such day or (ii) the next following business day if the request is received when the New York Stock Exchange is closed. 4. Distributions Distributions of Merck Common Stock will be valued at the closing price of Merck Common Stock on the New York Stock Exchange on the distribution date. 5. Limitations Shares of Merck Common Stock to be delivered under the provisions of this Program may be delivered by the Company from its authorized but unissued shares of Common Stock or from Common Stock held in the treasury. The amount of shares available each year under this Program shall be one-tenth of one-percent of outstanding shares of Merck Common Stock on the last business day of the preceding calendar year plus any shares authorized under this Program in previous years but not used, minus any shares distributed under the Executive Incentive Plan after April 26, 1994. 6. Adjustments In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, rights offering or any other change in the corporate structure or shares of the Company, the number and kind of shares of Merck Common Stock available under this Program or credited to participants' Deferred Compensation Accounts shall be adjusted accordingly. B. Mutual Funds ------------ 1. Initial Crediting The amount allocated to each Mutual Fund shall be used to determine the number of full and partial Mutual Fund shares that such amount would purchase at the closing net asset value of the Mutual Fund shares on the Deferral Date. The Company shall credit the participant's Deferred Compensation Account with the number of full and partial Mutual Fund shares so 3 determined. However, no Mutual Fund shares shall be purchased or earmarked for such Account, nor shall the participant have the rights of a shareholder with respect to such Mutual Fund shares. 2. Dividends The Company shall credit the participant's Deferred Compensation Account with the number of full and partial Mutual Fund shares purchasable, at the closing net asset value of the Mutual Fund shares as of the date each dividend is paid on the Mutual Fund shares, with the dividends which would have been paid on the number of shares credited to such Account (including pro rata dividends on any partial share) had the shares then been owned by the participant for purposes of the above computation. 3. Redesignations The value of Mutual Fund shares for purposes of redesignation shall be the net asset value of such Mutual Fund at the close of business on (i) the day when the redesignation request is received pursuant to administrative guidelines established by the Human Resources Financial Services area of the Treasury department, provided the request is received prior to the close of the New York Stock Exchange on such day or (ii) the next following business day if the request is received when the New York Stock Exchange is closed. 4. Distributions Mutual Fund distributions will be valued based on the closing net asset value of the Mutual Fund shares on the distribution date. 5. Adjustments In the event of a reorganization, recapitalization, stock split, stock dividend, combination of shares, merger, consolidation, rights offering or any other change in the corporate structure or shares of a Mutual Fund, the number and kind of shares of that Mutual Fund credited to participants' Deferred Compensation Accounts shall be adjusted accordingly. V. REDESIGNATION WITHIN A DEFERRED COMPENSATION ACCOUNT A. Basic Redesignation Rules ------------------------- A participant, or the beneficiary or legal representative of a deceased participant, may redesignate amounts credited to a Deferred Compensation Account among the investments available under this Program in accordance with the following rules: (1) Eligible Participants - Active employees, separated employees and retired participants are eligible to redesignate; provided, however, that no such redesignation shall be made into Merck Common Stock. 4 (2) Frequency and Timing - Effective June 1, 1999, there is no limit on the number of times a participant may redesignate amounts measured by Mutual Funds, or, subject to Section B, below, Merck Common Stock. Redesignation shall take place on (i) the day when the redesignation request is received pursuant to administrative guidelines established by the Human Resources Financial Services area of the Treasury department, provided the request is received prior to the close of the New York Stock Exchange on such day or (ii) the next following business day if the request is received when the New York Stock Exchange is closed. (3) Amount and Extent of Redesignation - Redesignation must be in 1% multiples of the investment from which redesignation is being made. (4) Beneficiaries or Legal Representatives - The beneficiary or legal representative of a deceased participant may redesignate subject to the same rules as participants. However, the beneficiary or legal representative shall have one opportunity to redesignate any amount out of Merck Common Stock without regard to the rule set forth in Section B, below; thereafter, the beneficiary or legal representative shall be subject to the same redesignation rules as participants (including the limitation on redesignation out of Merck Common Stock). B. Special Rules for Redesignation Out of Common Stock --------------------------------------------------- 1. Eligible Participants No redesignation may be made out of Merck Common Stock unless the participant's balance in Merck Common Stock exceeds three times such participant's Annual Base Salary. For the purposes of this Section B, Annual Base Salary for an active participant shall be such participant's monthly base salary at the date the redesignation is requested, and, for a retired participant, monthly base salary at the date of retirement, annualized. 2. Frequency and Timing For Section 16 Officers, redesignations may only be made out of Merck Common Stock during any window period established by the Company from time-to-time. 3. Amount. Redesignation of amounts in Merck Common Stock is restricted to amounts in excess of three times Annual Base Salary. For Section 16 Officers, redesignation of amounts in Merck Common Stock is also restricted to amounts held in Merck Common Stock for longer than six (6) months. 4. Material, Nonpublic Information The Committee, in its sole discretion and with advice of counsel, at any time may rescind a redesignation out of Merck Common Stock if such redesignation was made by a participant who, a) at the time of the redesignation was in the possession of material, nonpublic information with respect to the Company; and b) in the Committee's estimation benefited from such information in the timing of his/her redesignation. The Committee's determination shall be final and binding. In the event of such rescission, the participant's Deferred Compensation Account shall be returned to a status as though such redesignation had not occurred. Notwithstanding the above, the Committee shall not rescind a redesignation if the facts were reviewed by the participant with the 5 General Counsel of the Company or a designee prior to the redesignation and if the General Counsel or designee had concluded that such participant was not in possession of adverse material, nonpublic information. C. Conversion of Common Stock Accounts ----------------------------------- The Committee may, in its sole discretion, convert all of the shares of Merck Common Stock allocated to a participant's Deferred Compensation Account in the manner provided below where a position which a terminated or retired participant has taken or wishes to take is, in the opinion of the Committee, such as would make uncertain the propriety of the participant's having a continued interest in Merck Common Stock. The date of conversion shall be the date of commencement of such other employment or the date of the Committee's action, whichever is later. Conversion shall be from an expression of value in shares of Merck Common Stock in the participant's Deferred Compensation Account to an expression of value in United States dollars in another available investment. The value of the Merck Common Stock shall be based upon its closing price on the New York Stock Exchange on the date of conversion or if no trading took place on such day, the next business day on which trading took place. Any conversion under this paragraph shall be irrevocable and absolute. VI. DISTRIBUTION OF DEFERRED COMPENSATION ACCOUNTS Distribution of Deferred Compensation Accounts shall be made in accordance with the participant's distribution schedule pro rata by investment. Distributions from Merck Common Stock will be made in shares, with cash payable for any partial share, subject to the limitations set forth in Article IV, Section A.5. For Section 16 Officers, distribution of amounts in Merck Common Stock is also restricted to amounts held in Merck Common Stock for longer than six months. Distributions from Mutual Funds will be in cash. Distributions will be valued on the fifteenth day of the distribution month (or, if such day is not a business day, the next business day) and paid as soon thereafter as practicable. A. Retirement A participant's retirement from active service will cause distributions of his/her Deferred Compensation Account to commence as soon as administratively feasible in accordance with the participant's previously elected schedule. If a participant retires from active service prior to age 65, the Committee may establish a different distribution schedule. The schedule chosen by the Committee, however, shall not be shorter than the participant's previously elected schedule unless there has been or would be a significant change in the participant's economic circumstances attributable to the participant's early retirement. If the Committee decides to change the participant's distribution schedule, the participant's Deferred Compensation Account must be distributed ratably over no less than five years. However, if a participant has retired at the Company's request, the limitation in the preceding sentence does not apply. 6 B. Death In the event of a participant's death, distributions under this Program will commence as soon as administratively feasible in accordance with his/her previously elected schedule. The participant's beneficiary or legal representative, however, may request that the Committee change such distribution schedule. C. Automatic Distribution If a participant terminates employment for reasons other than death, divestiture or a separation due to reorganization, reduction in force, elimination of the participant's job, or to take a position with a joint venture of other business entity defined in Section E, below, and is not eligible to retire from active service under one of the Company's pension plans, then his/her Deferred Compensation Account will be automatically paid in a lump sum as soon as administratively feasible following his/her termination of employment. Furthermore, except as provided in Schedule II, any participant who dies, retires from active service, or whose employment terminates as a result of a divestiture, or a separation due to reorganization, reduction in force, or elimination of the participant's job, but whose Deferred Compensation Account is valued at less than $125,000 on the date of his/her death, retirement, termination due to divestiture or separation will have his/her Deferred Compensation Account distributed in a lump sum as soon as administratively feasible following his/her death, retirement, or termination due to divestiture or separation. D. Termination Due to Divestiture or Separation If a participant is employed by a subsidiary of the Company that is sold, so that the subsidiary is no longer considered within the controlled group of the Company, that participant shall be considered to have terminated employment with the Company for purposes of this Program. If a participant's employment terminates as a result of a divestiture of a division or subsidiary of the Company, or as a result of a separation due to a reorganization, reduction in force, or elimination of the participant's job, distributions under this Program will commence as soon as administratively feasible after such termination of employment in accordance with his/her previously elected schedule or such schedule as the Committee, in its discretion, may approve in accordance with Section G, below. E. Joint Venture Service A participant's termination of employment in order to take a position with a joint venture or other business entity in which the Company shall directly or indirectly own fifty percent or more of the outstanding voting or other ownership interest shall not be considered a termination of employment with the Company for purposes of distribution under this Program. 7 F. Hardship Distributions The Committee, in its sole discretion, may accelerate the time of distribution of a participant's Deferred Compensation Account, if the participant experiences severe financial hardship due to illness, accident or death in the immediate family, loss of or damage to property due to casualty, or other extraordinary and unforeseeable circumstances. Such participant should provide the Committee with a statement in reasonable detail as to the nature of such financial hardship together with a statement that such acceleration is necessary to alleviate such hardship. G. Post-Retirement, Post-Divestiture and Post-Separation Modifications A participant who has retired from active service or whose employment has terminated as a result of a divestiture or separation as described in Section D, above, may submit one petition to the Committee requesting an extension of the period of distribution of his/her Deferred Compensation Account. Such petition must be received by the Committee prior to the first distribution to the participant of his/her previously elected distribution schedule. Any revised distribution schedule may not exceed fifteen years from the date of actual retirement, or the divestiture or separation date and will be effective the beginning of the next calendar year. The Committee shall in no event grant a new schedule under which the participant would cumulatively receive a greater portion of his/her Deferred Compensation Account as measured at the end of each calendar year. Except as provided in Schedule II, a participant who is an active employee may not make a request under this paragraph. VII. DEDUCTIONS FROM DISTRIBUTIONS The Company will deduct from each distribution amounts required to be withheld for income, Social Security and other tax purposes. Such withholding will be done on a pro rata basis per investment. The Company may also deduct any amounts the participant owes the Company for any reason. VIII. BENEFICIARY DESIGNATIONS A participant under this program may designate a beneficiary to receive his/her Deferred Compensation Account upon the participant's death. Should the beneficiary predecease the participant or should the participant not name a beneficiary, the participant's Deferred Compensation Account will be distributed to the participant's estate. IX. AMENDMENTS The Committee may amend this Program at any time. However, such amendment shall not materially adversely affect any right or obligation with respect to any Deferred Compensation made theretofore. 8 SCHEDULE I DEFERRAL PROGRAM INVESTMENT ALTERNATIVES (January 1, 2002) Merck Common Stock Mutual Funds American Century Emerging Markets Fund American Funds EuroPacific Growth Fund Fidelity Destiny I Fidelity Dividend Growth Fidelity Equity-Income Fund Fidelity Low-Priced Stock Fund Fidelity Retirement Money Market Fidelity Spartan(R)Government Income Fidelity Spartan(R)U.S. Equity Index Franklin Small-Mid Cap Growth A Janus Enterprise Janus Growth & Income Liberty Acorn Fund-Class Z PIMCO Foreign Bond Institutional PIMCO Long Term US Government Institutional PIMCO Total Return Institutional Putnam Global Equity Fund A* Putnam International Voyager A Putnam Vista A T. Rowe Price Blue Chip Growth Fund Vanguard Asset Allocation *From September 20, 2002 - September 30, 2002, this investment was briefly named the Putnam Global Growth Fund A as a result of the merger, in September 2002, of Putnam Global Equity Fund A with Putnam Global Growth Fund A. The merged fund briefly retained the name "Putnam Global Growth Fund A." Effective October 1, 2002, the merged fund changed its name to "Putnam Global Equity Fund A." 9 SCHEDULE II SPECIAL PROVISIONS APPLICABLE TO MEDCO HEALTH EMPLOYEES (approved July 23, 2002) DEFINITIONS - ----------- Medco Health - Medco Health Solutions, Inc. - ------------ Medco Health Employee - A participant who is (i) employed by Medco Health prior - --------------------- to the Spin-Off or (ii) employed by Merck prior to the Spin-Off and expected to be employed by Medco Health prior to or as of the Spin-Off. Separated Medco Health Employee - A participant in the Deferral Program who is - ------------------------------- employed by Medco Health as of the date of the Spin-Off and is considered to have terminated employment with the Company as a result of the Spin-Off. Spin-Off -- The distribution by Merck to its shareholders of the equity - -------- securities of Medco Health. The Spin-Off will be a divestiture for purposes of the Deferral Program. SPECIAL PROVISIONS - ------------------ Notwithstanding anything to the contrary in Article VI, Section C of the Deferral Program, the Deferred Compensation Account of each Separated Medco Health Employee shall be paid out in accordance with Article VI, Section D, without regard to the $125,000 threshold set forth in Section C. Notwithstanding anything to the contrary in Article VI, Section G of the Deferral Program, each Medco Health Employee may submit the petition for an extension of the distribution schedule permitted under Section G either prior to the Spin-Off or once the Medco Health Employee has become a Separated Medco Health Employee; provided, however, that if a Medco Health Employee makes a request for a new distribution schedule prior to the Spin-Off and thereafter does not become a Separated Medco Health Employee, then such request shall not be effective. 10 EX-5 4 y66126dexv5.txt OPINION AND CONSENT OF CELIA A. COLBERT EXHIBIT 5 Merck & Co., Inc. One Merck Drive Whitehouse Station, NJ 08889 November 26, 2002 Board of Directors Merck & Co., Inc. One Merck Drive Whitehouse Station, NJ 08889-0100 Re: Registration Statement on Form S-8 for the Merck & Co., Inc. Deferral Program as restated on October 15, 2002 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 (i) $200,000,000 of unsecured obligations (the "Deferred Compensation Obligations") of the Company to pay deferred compensation in accordance with the terms and conditions of the Company's Deferral Program as restated October 15, 2002 (the "Program"); and (ii) 1,000,000 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 Program. I have examined such corporate records and other documents, including the Registration Statement on Form S-8 relating to the Deferred Compensation Obligations and 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. The Deferred Compensation Obligations have been duly authorized and, when the Registration Statement and any amendments thereto filed with the Securities and Exchange Commission have become effective, and deferred amounts are credited to the accounts of participants in accordance with the terms and conditions of the Program, the Deferred Compensation Obligations will be valid and binding obligations of the Company, enforceable in accordance with their terms and the terms and conditions of the Program, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws or general applicability relating to or affecting enforcement of creditors' rights or by general equity principles; and 3. 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 Vice President, Secretary, and Assistant General Counsel EX-24.A 5 y66126dexv24wa.txt CERTIFIED RESOLUTION OF BOARD OF DIRECTORS EXHIBIT 24(a) I, Nancy V. Van Allen, 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 November 26, 2002, at a meeting of the Directors of said Corporation held in the town of Whitehouse Station, State of New Jersey, 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 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 deferred compensation obligations and shares of Common Stock of the Company which may be distributed under the Merck & Co., Inc. Deferral Program; 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 Statement 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 Statement 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 Program, 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; 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 Program; 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 27th day of November 2002. By: /s/ Nancy V. Van Allen ------------------------------ Nancy V. Van Allen Senior Assistant Secretary [Corporate Seal] EX-24.B 6 y66126dexv24wb.txt POWER OF ATTORNEY EXHIBIT 24(b) 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 deferred compensation obligations and shares of Common Stock of Merck & Co., Inc. which may be distributed under Merck & Co., Inc. Deferral Program covered by this Registration Statement, including amendments thereof and all other documents in connection therewith. IN WITNESS WHEREOF, this instrument has been duly executed as of the 26th day of November 2002. MERCK & CO., INC. By: /s/ Raymond V. Gilmartin -------------------------------- Raymond V. Gilmartin Chairman of the Board, President & Chief Executive Officer; Director /s/ Judy C. Lewent ----------------------------------- Judy C. Lewent Executive Vice President & Chief Financial Officer (Principal Financial Officer) /s/ Richard C. Henriques, Jr. ----------------------------------- Richard C. Henriques, Jr. Vice President, Controller (Principal Accounting Officer) DIRECTORS /s/ Lawrence A. Bossidy /s/ Heidi G. Miller - ------------------------------------ --------------------------- Lawrence A. Bossidy Heidi G. Miller /s/ William G. Bowen /s/ Edward M. Scolnick - ------------------------------------ --------------------------- William G. Bowen Edward M. Scolnick /s/ Thomas E. Shenk - ------------------------------------ --------------------------- Johnnetta B. Cole Thomas E. Shenk /s/ William M. Daley /s/ Anne M. Tatlock - ------------------------------------ --------------------------- William M. Daley Anne M. Tatlock /s/ William B. Harrison, Jr. /s/ Samuel O. Thier - ------------------------------------ --------------------------- William B. Harrison, Jr. Samuel O. Thier /s/ William N. Kelley - ------------------------------------ William N. Kelley -----END PRIVACY-ENHANCED MESSAGE-----