<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 1994
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MERCK & CO., INC.
(Exact name of issuer as specified in its charter)
P.O. Box 100
One Merck Drive
Whitehouse Station, New Jersey 08889
(908) 423-1000
(Address of Principal Executive Offices)
<TABLE>
<S> <C>
NEW JERSEY 22-1109110
(State of Incorporation) (I.R.S. Employer Identification No.)
</TABLE>
MEDICAL MARKETING GROUP, INC. ("MMG")
1991 CLASS B STOCK OPTION PLAN
MMG 1991 SPECIAL NON-QUALIFIED STOCK OPTION PLAN
CERTAIN STOCK OPTIONS
(Full title of the plans)
CELIA A. COLBERT
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
<TABLE>
<CAPTION>
Proposed
maximum Proposed maximum
offering aggregate
Amount price per offering Amount
Title of securities to be registered to be registered share* price* of registration fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no par value) 1,250,000 $ 29.69 $ 37,112,500 $ 12,804
shares
===========================================================================================================================
</TABLE>
* The prices stated above are estimated solely for the purpose of
determining the registration fee and are based on the average of the high and
low market prices of the stock as reported on the composite tape of New York
Stock Exchange listed issues on April 28, 1994
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the registrant (Exchange Act File No.
1-3305) with the Securities and Exchange Commission are incorporated herein by
reference and made a part hereof:
(1) Annual Report on Form 10-K for the fiscal year ended December 31,
1993;
(2) Proxy Statement for the Annual Meeting of Stockholders held
April 26, 1994;
(3) The description of the Common Stock of the registrant set forth
in the registrant's Registration Statement pursuant to Section
12 of the Exchange Act, and any amendment or report filed for the
purpose of updating any such description.
All documents filed by the registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act from the date hereof and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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 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.
II-2
<PAGE> 3
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,
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
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.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
- ------ ----------- ----------------
<S> <C> <C>
4.1 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
</TABLE>
II-3
<PAGE> 4
<TABLE>
<S> <C>
4.2 By-Laws of the registrant (as amended November 22, 1988) Incorporated by
reference to Form
10-K Annual Report
for the fiscal year
ended December 31,
1988
4.3 Medical Marketing Group, Inc. ("MMG") 1991 Class B Stock Option Plan *
4.4 Form of MMG Class B Non-Qualified Stock Option Agreement *
4.5 MMG 1991 Special Non-Qualified Stock Option Plan *
4.6 Form of MMG 1991 Special Non-Qualified Stock Option Agreement *
4.7 Stock Option Agreement dated as of July 15, 1991 between Micki Mikula *
and MMG
4.8 Stock Option Agreement dated as of April 5, 1991 between Marianne *
Vignone and MMG
4.9 Stock Option Agreement dated as of April 5, 1991 between Peggy *
Jablonski and MMG
4.10 Stock Option Agreement dated as of April 22, 1991 between Roger *
Holstein and MMG
4.11 Stock Option Agreement dated as of May 1, 1992 between Carl Kanter and *
MMG
4.12 Assumption Agreement dated April 6, 1994 between registrant and MMG *
5 Opinion of Bert I. Weinstein, Associate General Counsel of the *
registrant
23 Consent of Arthur Andersen & Co. *
24 Power of Attorney of Board of Directors Included at Page II-6 of this
Registration Statement
- ---------------
</TABLE>
* Filed with this Registration Statement.
ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1. 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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the registration statement;
(iii) 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;
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
II-4
<PAGE> 5
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
3. 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.
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as 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.
II-5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Whitehouse Station, State of New Jersey, on the 29th day
of April, 1994.
MERCK & CO., INC.
By: /s/ P. Roy Vagelos, M.D.
--------------------------
P. Roy Vagelos, M.D.
(Chairman of the Board, President
and Chief Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Celia A. Colbert or Mary M. McDonald, and each of them, as his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents relating thereto,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing necessary or advisable to be
done in and about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ P. Roy Vagelos, M.D. Chairman of the Board, April 29, 1994
- -------------------------- President and Chief Executive
P. Roy Vagelos, M.D. Officer (Principal Executive
Officer) and Director
/s/ Judy C. Lewent Senior Vice President and April 29, 1994
- --------------------------- Chief Financial Officer
Judy C. Lewent (Principal Financial Officer)
/s/ Peter E. Nugent Vice President, Controller April 29, 1994
- --------------------------- (Principal Accounting Officer)
Peter E. Nugent
/s/ H. Brewster Atwater, Jr. Director April 29, 1994
- ----------------------------
H. Brewster Atwater, Jr.
/s/ Sir Derek Birkin Director April 29, 1994
- ----------------------------
Sir Derek Birkin
/s/ Lawrence A. Bossidy Director April 29, 1994
- -----------------------------
Lawrence A. Bossidy
/s/ William G. Bowen, Ph.D. Director April 29, 1994
- -----------------------------
William G. Bowen, Ph.D.
</TABLE>
II-6
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Carolyne K. Davis, Ph.D. Director April 29, 1994
- ----------------------------
Carolyne K. Davis, Ph.D.
/s/ Lloyd C. Elam, M.D. Director April 29, 1994
- ----------------------------
Lloyd C. Elam, M.D.
/s/ Charles E. Exley, Jr. Director April 29, 1994
- ----------------------------
Charles E. Exley, Jr.
/s/ William N. Kelley, M.D. Director April 29, 1994
- ----------------------------
William N. Kelley, M.D.
/s/ Ruben F. Mettler, Ph.D. Director April 29, 1994
- ----------------------------
Ruben F. Mettler, Ph.D.
/s/ Richard S. Ross, M.D. Director April 29, 1994
- -----------------------------
Richard S. Ross, M.D.
/s/ Dennis Weatherstone Director April 29, 1994
- -----------------------------
Dennis Weatherstone
/s/ Martin J. Wygod Director April 29, 1994
- -----------------------------
Martin J. Wygod
</TABLE>
II-7
<PAGE> 8
Exhibit
Number Description Method of Filing
4.1 Restated Certificate of Incorporation of the Incorporated by
registrant (May 6, 1992) reference to Form
10-K Annual Report
for the fiscal year
ended December 31,
1992
4.2 By-Laws of the registrant (as amended Incorporated by
November 22, 1988) reference to Form
10-K Annual Report
for the fiscal year
ended December 31,
1988
4.3 Medical Marketing Group, Inc. ("MMG") 1991 Class B *
Stock Option Plan
4.4 Form of MMG Class B Non-Qualified Stock Option *
Agreement
4.5 MMG 1991 Special Non-Qualified Stock Option Plan *
4.6 Form of MMG 1991 Special Non-Qualified Stock *
Option Agreement
4.7 Stock Option Agreement dated as of July 15, 1991 *
between Micki Mikula and MMG
4.8 Stock Option Agreement dated as of April 5, 1991 *
between Marianne Vignone and MMG
4.9 Stock Option Agreement dated as of April 5, 1991 *
between Peggy Jablonski and MMG
4.10 Stock Option Agreement dated as of April 22, 1991 *
between Roger Holstein and MMG
4.11 Stock Option Agreement dated as of May 1, 1992 *
between Carl Kanter and MMG
4.12 Assumption Agreement dated April 6, 1994 between *
registrant and MMG
5 Opinion of Bert I. Weinstein, Associate General *
Counsel of the registrant
23 Consent of Arthur Andersen & Co. *
24 Power of Attorney of Board of Directors Included at Page II-
6 of this
Registration
Statement
* Filed with this Registration Statement.
<PAGE> 1
EXHIBIT 4.3
MEDICAL MARKETING GROUP, INC.
1991 CLASS B STOCK OPTION PLAN
1. Definitions. The terms below shall be defined as
indicated.
1.1 Board means the Board of Directors of the Company,
as constituted at any time.
1.2 Code means the Internal Revenue Code of 1986, as
amended from time to time.
1.3 Committee means the Committee of the Board
described in Section 3.1.
1.4 Common Stock means the Company's Common Stock, par
value $.01.
1.5 Company means Medical Marketing Group, Inc., a
Delaware corporation, and any successor corporation which adopts
the Plan.
1.6 Disinterested Director means a member of the Board
who is a "disinterested person" within the meaning of Rule 16b-3
under the Exchange Act, as such Rule is currently in effect or as
such Rule is amended from time to time.
1.7 Employee means a person (including an Employee who
is also an officer or a director of the Company) employed by the
Parent, the Company or a Subsidiary on a full time basis, who is
compensated by a regular salary.
<PAGE> 2
1.8 Exchange Act means the Securities Exchange Act of
1934, as amended from time to time.
1.9 Fair Market Value means, on a specified date, the
last sales price of a Share traded on the over-the-counter
market, as reported on the National Association of Securities
Dealers Automated Quotation System or the closing price for a
Share on the stock exchange, if any, on which Shares are
primarily traded; provided, however, that if no Shares were
traded on such date, then on the last previous date on which a
Share was so traded, or, if none of the above is applicable, the
value of a Share as established by the Committee for such date,
using any reasonable method of valuation.
1.10 Incentive Stock Option means an Option which is
intended to qualify as an "incentive stock option" within the
meaning of Section 422 of the Code.
1.11 Key Contractor means an individual (other than an
Employee) who is an officer or director of the Parent, the
Company or a Subsidiary or a consultant, agent, or other person
engaged by the Parent, the Company or a Subsidiary to render
services to, or on behalf of, the Parent, the Company or such
Subsidiary.
1.12 Nonqualified Stock Option means any Option which
is not an Incentive Stock Option.
1.13 Option means an option granted by the Company
pursuant to the Plan to purchase Shares.
-2-
<PAGE> 3
1.14 Option Agreement means a written agreement, as
described in Section 7 hereof, between the Company and an
Optionee evidencing an Option.
1.15 Option Period means the period from the date of
the granting of an Option to the date on which that Option can no
longer be exercised, as determined by the Committee pursuant to
Section 7.4 hereof.
1.16 Option Price means the price to be paid for the
Shares purchased pursuant to an Option.
1.17 Optionee means any person who is granted an
Option under the Plan.
1.18 Parent means a parent of the Company as defined
under Section 424 of the Code.
1.19 Plan means the Company's 1991 Class B Stock
Option Plan, as embodied herein and as amended from time to time.
1.20 Shares means shares of Common Stock.
1.21 Subsidiary means a subsidiary of the Company as
defined under Section 424 of the Code.
2. Purpose. The Plan is intended to encourage ownership of
Common Stock by certain Employees and Key Contractors in order to
increase their interest in the Company's success and to encourage
them to remain in the employ of the Parent, the Company and its
Subsidiaries.
3. Administration
3.1 Board or Committee. The Plan shall be
administered by the Board or, if the Board so elects, by a
-3-
<PAGE> 4
Committee of at least three members of the Board to be appointed
by the Board, all of whom shall be Disinterested Directors. If
the Board administers the Plan, it may do so only so long as a
majority of directors, and a majority of directors acting on any
matter, are Disinterested Directors. Notwithstanding the
foregoing, the Plan may be administered, with respect to
participation in the Plan by officers who are not directors of
the Company, (i) by the Board or a Committee of at least three
members of the Board, none of whom are required to be
Disinterested Directors, or (ii) by, or in accordance with the
recommendations of, a committee of at least three persons having
full authority to act in the matter, all of the members of which
Committee are "disinterested persons" within the meaning of Rule
16b-3 under the Exchange Act. Notwithstanding the foregoing,
from and after May 1, 1991, the Plan shall be administered by (i)
the Board, if each director is a Disinterested Director, or (ii)
a Committee consisting of two or more directors, each of whom is
a Disinterested Director. In the event that the Board does not
elect to appoint a Committee then, for purposes of administering
the Plan, the term "Board" shall be substituted for the term
"Committee" whenever it appears in the Plan.
3.2 Interpretation and Construction. The Committee
shall have the authority to interpret and construe the provisions
of the Plan or of any Option Agreement and such interpretation or
construction shall be final and conclusive unless otherwise
determined by the Board, and in any such event the determination
-4-
<PAGE> 5
by the Board shall be final and conclusive. The Committee may
establish such rules and regulations concerning the Plan and any
Option Agreement as the Committee may determine to be necessary
or advisable for the administration of the Plan, including,
without limiting the foregoing, rules and regulations concerning
non-competition provisions to be abided by any Optionee.
3.3 Determination of Option Terms. Notwithstanding
the provisions of Section 7.5, subject to the provisions of
Section 12, the Committee shall have authority, subject to the
terms of the Plan, to determine the vesting and exercise schedule
with respect to the Options, the persons to whom Options shall be
granted, the number of Shares to be covered by each Option, the
time or times at which Options shall be granted, and the terms
and provisions of the Options, and to make all other
determinations necessary or advisable for the administration of
the Plan; provided, however, that in no event shall the vesting
schedule permit the aggregate percentage of any Option that is
exercisable at any time to average more than 20% per year for the
first five years for which the Option has been outstanding.
Subject to the consent of any Optionee affected, the Committee
shall have the right to cancel any outstanding Options and to
issue new Options on much terms and upon such conditions as the
Committee may determine.
4. Eligible Persons. The Committee may grant Options to
any Employee or Key Contractor other than those members of the
Board designated by the Board to be ineligible; provided,
-5-
<PAGE> 6
however, that an Incentive Stock Option shall not be granted to
any individual who is not an Employee as of the date of grant,
and, provided further, that no Incentive Stock Option shall be
granted to an individual who, at the time such Option is granted,
owns (within the meaning of Section 422 of the Code) stock
possessing more than 10% of the total combined voting power of
all classes of stock of the Parent, the Company or any
Subsidiary, unless, at the time the Incentive Stock Option is
granted, the Option Price is at least 110% of the Fair Market
Value of a Share and the Incentive Stock Option, by its terms, is
not exercisable after the expiration of five years from the date
such Option is granted; and further provided, however, that no
member of the Committee shall be eligible to receive any Options
granted under the Plan during the time that such person is a
member of the Committee.
5. Grant of Options.
5.1 Procedure. Subject to the provisions of
Section 8.1 hereof, the Committee may grant Options, which may be
either Incentive Stock Options or Nonqualified Stock Options (as
determined by the Committee, in its sole discretion) provided
that the person to whom the Option is granted subsequently
becomes a party to an Option Agreement. An Option granted
pursuant to the Plan shall be presumed to be a Nonqualified Stock
Option, unless the Committee specifies otherwise at the time the
Option is granted.
-6-
<PAGE> 7
5.2 Additional Grants. Nothing contained in the Plan
shall be construed to preclude either the granting of an Option
to an Optionee to whom one or more Options have already been
granted or the simultaneous granting of more than one Option to
the same Optionee.
5.3 Subject to Exchange Rules. Any and all grants of
Options shall be subject to all applicable rules and regulations
of any stock exchange on which the Company's Common Stock may
then be listed.
6. Effective and Expiration Dates of Plan. This Plan shall
be effective on March 15, 1991. No Option shall be granted under
the Plan after March 14, 2001.
7. Option Agreements. Option Agreements shall be in such
form as the Committee, in its sole discretion, shall approve or
determine; provided, however, that all Option Agreements shall
comply with and be subject to the following terms and conditions:
7.1 Manner, Time, and Medium of Payment. An Option
shall be exercised in the manner set forth in the Option
Agreement relating thereto and payment in full of the Option
Price for all Shares shall be made at the time of exercise.
Payment shall be in United States dollars in the form of cash,
certified check, bank draft, or if the Committee has so
determined, by delivery to the Company Shares which the Optionee
has owned for at least six months, or by withholding Shares with
respect to which the Optionee has exercised such Option having a
Fair Market Value on the date of exercise equal to the sum of the
-7-
<PAGE> 8
Option Price for the withheld Shares and the remaining Shares
with respect to which the Optionee has exercised such Option, or
any combination of such methods of payment. Shares shall be
valued at their Fair Market Value on the date of exercise.
7.2 Number of Shares. Subject to Section 9 hereof,
the Option Agreement shall state the number of Shares to which it
pertains.
7.3 Option Price. The Option Price shall be
determined by the Committee, in its sole discretion; provided,
however, that in the case of a Nonqualified Stock Option, the
Option Price shall not be less than 85% of the Fair Market Value
of a Share as of the date the Option is granted, and, subject to
the provisions of Section 4 hereof, in the case of an Incentive
Stock Option, shall not be less than 100% of the Fair Market
Value of a Share as of the date the Option is granted.
7.4 Option Period. Each Option granted under the Plan
shall expire no later than ten years (or five years as provided
in Section 4 hereof) from the date the Option is granted. Option
Agreements shall contain provisions for the earlier expiration of
the Options in the event of the Optionee's termination of
employment as provided by Section 7.8 hereof.
7.5 Date of Vesting; Exercise. Subject to the terms
and conditions of the Plan and the provisions of Section 3.2,
each Option shall vest with respect to the Shares from and after
each anniversary of the date on which such Option was granted
-8-
<PAGE> 9
(each, an "Anniversary") in the respective percentages in
accordance with the following schedule:
<TABLE>
<CAPTION>
Anniversary of Grant Percentage
-------------------- ----------
<S> <C>
First Anniversary 15%
Second Anniversary 17.5%
Third Anniversary 20%
Fourth Anniversary 22.5%
Fifth Anniversary 25%
</TABLE>
The foregoing vesting is on a cumulative basis. Notwithstanding
the foregoing sentence, the Committee in its discretion may
determine at the time of grant of any Option that such Option
shall not become exercisable before a specified time but at such
specified time shall become exercisable as to all Shares as to
which the Option has previously vested. In no event will any
Option become exercisable under the Plan unless the Shares become
Publicly Traded. For purposes of the Plan, "Publicly Traded"
means that shares of Common Stock are registered under Section
12(b) or Section 12(g) of the Exchange Act or issued in a
transaction which causes the Company to become subject to Section
15(d) of the Exchange Act. Notwithstanding the foregoing, in the
event of a "Change in Control" the Committee may, in its sole
discretion, determine that any Option granted under the Plan
shall become exercisable in full or in part, whether or not it is
then exercisable. For purposes of the Plan, a "Change in
Control" shall be deemed to have occurred:
-9-
<PAGE> 10
(i) when any "person", as defined in Section 3(a)(9) of the
Exchange Act and as used in Sections 13(d) and 14(d)
thereof, including a "group" as defined in Section
13(d) of the Exchange Act (but excluding the Parent,
Medco Containment Services, Inc. ("Medco") and the
Company (and any successor to the Parent, Medco or the
Company which became a successor to the Parent, Medco
or the Company in a transaction which did not result in
a Change in Control), any Subsidiary or subsidiary of
the Parent or Medco and any employee benefit plan
sponsored or maintained by the Parent or Medco or their
subsidiaries or the Company or any Subsidiary,
including any trustee of such plan acting as trustee)
directly or indirectly becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act, as
amended from time to time) of, or makes an offer to
purchase, securities of the Parent, Medco or the
Company representing 50 percent or more of the combined
voting power of its then outstanding securities with
respect to the election of directors;
(ii) when, during any period of 24 consecutive months during
the existence of the Plan, the individuals who, at the
beginning of such period, constitute the Board of
Directors of the Parent or Medco or the Board, as the
case may be (the "Incumbent Directors"), cease for any
reason other than death to constitute at least a
-10-
<PAGE> 11
majority thereof; provided, however, that a director
who was not a director at the beginning of such 24-
month period shall be deemed to have satisfied such 24-
month requirement (and be an Incumbent Director) if
such director was elected by, or on the recommendation
of or with the approval of, at least two-thirds of the
directors of the Parent, Medco or the Company, as the
case may be, who then qualified as Incumbent Directors
either actually (because they were directors at the
beginning of such 24-month period) or by prior
operation of this Section 7.5(ii);
(iii) when the shareholders of the Parent, Medco or the
Company, as the case may be, approve a merger or
consolidation of the Parent, Medco or the Company
without the consent or approval of a majority of its
Incumbent Directors;
(iv) when there is a sale or disposition of all or substan-
tially all of the Parent's, Medco's or the Company's
assets; or
(v) when the Company, the Parent or Medco adopts a plan of
liquidation.
Notwithstanding the foregoing, no Option shall become exercisable
in full or in part because of a Change in Control of Medco
unless, immediately preceding such Change in Control, Medco was
in "control" of the Company within the meaning of the Exchange
Act. The Committee may also determine that an Option shall
-11-
<PAGE> 12
become exercisable in full or in part, whether or not it is then
exercisable, upon such circumstances or events as the Committee
determines, in its sole discretion, merits special consideration.
7.6 Reorganization. In case the Company is merged or
consolidated with another corporation, or in case of a
reorganization, separation, or liquidation of the Company, the
Board or the board of directors of any corporation assuming the
obligations of the Company hereunder shall either (i) make
appropriate provisions for the protection of any outstanding
Options by the substitution on an equitable basis of appropriate
securities of the Company, or appropriate securities of the
merged, consolidated, or otherwise reorganized corporation, or
the appropriate adjustment in the Option Price, or both, or
(ii) give written notice to the Optionees that their Options must
be exercised, to the extent then exercisable after giving due
effect to Section 7.5 hereof, within 60 days of the date of such
notice or the Options will terminate.
7.7 Assignability. No Option shall be assignable or
transferable except by will or by the laws of descent and
distribution and no Option may be exercised other than by an
Optionee or, after the death of an Optionee, by that Optionee's
personal representative, heirs or legatees.
7.8 Continuation with Company.
7.8.1 No Option shall be exercisable by an
Optionee later than the expiration of the Option Period or 30
days (or such longer period determined by the Committee in its
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<PAGE> 13
sole discretion) after termination of such Optionee's service as
an employee or a Key Contractor, unless such termination of
service occurs by reason of the Optionee's retirement with the
consent of the Parent, the Company or the Subsidiary, as the case
may be, or his death. If the Optionee's services are terminated
because of his retirement with such consent or death (or if the
Optionee dies within 30 days of such termination or 90 days of
such retirement), the Optionee (or the representative of the
estate or the heirs or legatees of a deceased Optionee) shall
have the right to exercise the unexercised portion of the Option
which the Optionee could have exercised as of the date of his
retirement or death provided that notice of such exercise is
given pursuant to Section 7.1 hereof before the expiration of the
Option Period and within 90 days of the Optionee's retirement or
one year of the Optionee's death, as the case may be. If the
Optionee's services with the Parent, the Company or the
Subsidiary are terminated because of the Optionee's violation of
his duties to the Parent, the Company or the Subsidiary as he may
from time to time have, the existence of which violation shall be
determined by the Committee in its sole discretion (which
determination shall be conclusive), all of the Optionee's Options
shall terminate immediately as of the time of termination of the
Optionee's services and the Optionee shall have no right after
such termination to exercise any Option he might have exercised
prior to his termination of service. Nothing contained in this
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<PAGE> 14
Section 7.8.1 shall cause an Option to vest other than in
accordance with the provisions of Section 7.1 hereof.
7.8.2 Nothing in the Plan or in any Option
granted under it shall confer (or be deemed to confer) upon an
Optionee any right to continue in the employ or continue to be
retained by the Parent, the Company or any Subsidiary or
interfere in any way with the right of the Parent, the Company or
any Subsidiary to terminate his employment or retention at any
time.
7.9 Rights as a Stockholder. An Optionee shall have
no rights as a shareholder with respect to such Shares covered by
any Option until the date the Company has issued and delivered
such Shares to the Optionee, and the Optionee's name shall have
been entered as the shareholder of record on the books of the
Company and then only as to such Shares as are actually issued
and delivered to the Optionee.
7.10 Securities Laws. The Company may require each
Optionee to represent to the Company, in writing, when an Option
is exercised, that such Optionee is exercising such Option for
his own account for investment only and not with a view to
distribution and that the Optionee will not make any sale,
transfer, or other disposition of any Shares so purchased except
(i) pursuant to a registration statement filed under the
Securities Act of 1933, as amended, which the Securities and
Exchange Commission has declared effective, (ii) pursuant to an
opinion of counsel satisfactory in form and substance to the
-14-
<PAGE> 15
Company that said sale, transfer, or other disposition may be
made without registration, or (iii) pursuant to a "no action"
letter issued to the Optionee by the Securities and Exchange
Commission. The Company may require each certificate
representing Shares purchased upon the exercise of an Option to
bear a legend stating that the Shares evidenced thereby may not
be sold or transferred except in compliance with the Securities
Act of 1933, as amended, and the provisions of the Plan. No
Option may be granted or exercised at a time when such Option, or
the granting or exercise thereof, may result in the violation of
any law or governmental order or regulation.
7.11 Other Provisions. Option Agreements shall
contain such other terms and conditions not inconsistent with the
Plan as the Committee shall deem advisable or as shall be
required by Section 422 of the Code.
8. Shares Available for Option.
8.1 Maximum. Subject to Sections 7.6 and 9 hereof,
no more than 1,000,000 Shares shall be subject to purchase
pursuant to Options granted under the Plan. At all times during
the term of the Plan, the Company shall have reserved said number
of Shares less an amount equal to the number of Shares which have
been issued pursuant to the exercise of Options. At all times
after termination of the Plan, the Company shall have reserved
for issuance a number of Shares equal to the aggregate number of
Shares subject to outstanding Options.
-15-
<PAGE> 16
8.2 Expiration or Termination. If any outstanding
Option under the Plan expires for any reason or is terminated
prior to the expiration date of the Plan as set forth in
Section 6 hereof, the Shares allocable to any unexercised portion
of such Option may again be subject to Options under the Plan.
8.3 $100,000 Limitation. Notwithstanding any other
provision of this Plan to the contrary, the aggregate Fair Market
Value (determined as of the time of grant) of the sum of (a) the
Shares for which any Optionee is granted Incentive Stock Options
and (b) the securities of the Company or the Parent or any
Subsidiary for which such Optionee is be granted other incentive
stock options (within the meaning of Section 422 of the Code),
which are exercisable for the first time by such Optionee during
any calendar year shall not exceed $100,000.
9. Recapitalization or Change in Par Value of Common Stock.
The aggregate number of Shares purchasable under Options pursuant
to the Plan and the number of Shares and the Option Price for
Shares covered by each outstanding Option shall all be
proportionately adjusted, as deemed appropriate by the Committee,
if the Shares are split-up, converted, exchanged, reclassified,
or in any way substituted for. The Committee shall also provide
for appropriate adjustments of the numbers of Shares purchasable
under the Plan and of outstanding Options in the event of stock
dividends or distributions of assets or securities of other
companies owned by the Company to stockholders relating to Common
Stock for which the record date is prior to the date the Shares
-16-
<PAGE> 17
purchased by exercise of an Option are issued, except that no
such adjustment shall be made for cash dividends or stock
dividends of 10% or less (in the aggregate). Any such adjustment
to an outstanding Option may include an adjustment of the Option
Price or the number of Shares for which an Option may be
exercised, or may provide for an escrow of assets or securities
so distributed to be available upon future exercise, or any
combination thereof, as the Committee deems appropriate. In the
event of a change in the Company's presently authorized Common
Stock which is limited to a change of all of its presently
authorized Shares with par value into the same number of shares
without par value, or any change of the then authorized Shares
with par value into the same number of shares with a different
par value, the shares resulting from any such change shall be
deemed to be Shares as defined in Section 1.20 hereof, and no
change in the number of Shares covered by each Option or in the
Option Price shall take place.
10. Indemnification and Reliance.
10.1 Indemnification. Each person who is or shall
have been a member of the Board or of the Committee shall be
indemnified and held harmless by the Company against and from any
and all loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such person in connection with or
resulting from any claim, action, suit, or proceeding to which
such person may be a party or in which such person may be
involved by reason of any action taken or failure to act under
- -17-
<PAGE> 18
the Plan and against and from any and all amounts paid by such
person in settlement thereof (with the Company's written
approval) or paid by such person in satisfaction of a judgment in
any such action, suit, or proceeding to the fullest extent
permitted by the Delaware General Corporation Law, subject,
however, to the condition that upon the institution of any such
claim, action, suit, or proceeding, such person shall in writing
give the Company an opportunity to intervene at its own expense
on his behalf. The foregoing right of indemnification shall not
be exclusive of any other right to which such person may be
entitled as a matter of law or otherwise, or any power that the
Company may have to indemnify such person or hold him harmless.
10.2 Reliance. Each member of the Board or of the
Committee and each officer and employee of the Company in
performing duties under the Plan shall be entitled to rely upon
information and reports furnished in connection with the
administration of this Plan by any duly authorized officer or
agent of the Company.
11. Income Tax Withholding. If the Parent, the Company or
a Subsidiary shall be required to withhold any amounts by reason
of any federal, state or local tax rules or regulations in
respect of the payment of cash or the issuance of Shares pursuant
to the exercise of an Option, the Parent, the Company or such
Subsidiary shall be entitled to deduct and withhold such amounts
from any cash payments to be made to the Optionee. The Committee
or the Board may establish such rules and procedures as they deem
-18-
<PAGE> 19
necessary or advisable in connection with the withholding of
taxes relating to the exercise of any Option.
12. Amendment or Termination of Plan. The Plan may be
terminated and may be modified or amended by the Committee or the
Board at any time and from time to time; provided, however, that
(i) no modification or amendment either increasing the aggregate
number of Shares which may be issued under Options, materially
increasing benefits accruing to Optionees, or materially
modifying requirements as to eligibility to receive Options
hereunder shall be effective without shareholder approval within
one year of the date such amendment is adopted, and (ii) no such
termination, modification, or amendment of the Plan shall alter
or affect the terms of any then outstanding Options previously
granted hereunder without the consent of the Optionee.
13. Monetary Set-Off. If at any time an Optionee is
indebted to the Company, the Company may in the discretion of the
Committee (a) withhold from the Optionee (i) following the
exercise by an Optionee of an Option, Shares issuable to the
Optionee having a Fair Market Value on the date of exercise up to
the amount of indebtedness to the Company or (ii) following the
sale by an Optionee of Shares received pursuant to the exercise
of an Option, amounts due to an Optionee in connection with the
sale of such Shares up to the amount of indebtedness to the
Company, or (b) take any substantially similar action.
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<PAGE> 20
14. Captions. Other than the definitions in Section 1
hereof, the captions are not part of this Plan and shall not be
taken into account for purposes of interpreting the Plan.
15. Severability. Should any part, term or condition
hereof be declared illegal, unenforceable or not in compliance
with any other law, the validity of the remaining portions or
provisions of this Agreement shall not be affected thereby, and
the portions or provisions declared illegal, unenforceable or not
in compliance with such law shall be and hereby are redrafted to
conform and be in compliance with applicable law, while leaving
the remaining portions of this Agreement intact.
<PAGE> 1
EXHIBIT 4.4
1991 CLASS B NON-QUALIFIED STOCK OPTION
(Non-Assignable)
For _________ Shares
To Purchase Common Stock of
MEDICAL MARKETING GROUP, INC.
Issued Pursuant to the 1991 Class B Stock
Option Plan of Medical Marketing Group, Inc. (the "Plan")
THIS CERTIFIES that as of Date~ , 199 (the "Date of Grant")
name~ (the "Optionee") was granted an option (the "Option") to
purchase at the Option Price of $amount per share all or any
part of type out shares (# of shares~) fully paid and
non-assessable shares (the "Shares") of the common stock, par
value $.01 per share ("Common Stock"), of MEDICAL MARKETING
GROUP, INC. (the "Company"), a Delaware corporation, upon and
subject to the following terms and conditions:
1. Unless other indicated herein to the contrary,
capitalized terms used in this Option Certificate shall have the
same meaning as used in the Plan. Optionee is an Employee as
defined in the Plan.
2. The Option shall be for a period of ten years (the
"Option Period") and shall terminate on the tenth (10th)
anniversary of the Date of Grant unless the Option terminates
sooner pursuant to the terms of the Plan or this Option
Certificate.
3. Subject to the terms and conditions of the Plan and this
Option Certificate, the Option shall vest with respect to the
Shares from and after each anniversary of the Date of Grant
(each, an "Anniversary") in the respective percentages in
accordance with the following schedule:
<PAGE> 2
<TABLE>
<CAPTION>
Anniversary of Grant Percentage
-------------------- ----------
<S> <C>
First Anniversary 15%
Second Anniversary 17.5%
Third Anniversary 20%
Fourth Anniversary 22.5%
Fifth Anniversary 25%
</TABLE>
The foregoing vesting is on a cumulative basis. Notwithstanding
the foregoing, in the event of a Change of Control, the Committee
may, in its sole discretion, determine that the Option shall
become exercisable in full or in part, whether or not it is then
exercisable; provided, however, that the Option shall not become
exercisable in full or in part because of a Change of Control of
Medco, unless, immediately preceding such Change in Control,
Medco was in "control" of the Company within the meaning of the
Exchange Act. The Committee may also determine that the Option
shall become exercisable, in full or in part, whether or not it
is then exercisable, upon such circumstances or events as the
Committee determines, in its sole discretion, merits special
consideration.
4. The Optionee (or the representative of his estate
or his heirs or legatees) may exercise the Option by giving
written notice of exercise to the Company at its principal
business office, specifying the number of Shares for which the
Option is exercised, accompanied by payment in full of the Option
Price for such Shares (together with any amount required for
payroll withholding tax). If the Company has established a form
for notice of exercise, the Optionee shall use such form. The
Company shall cause certificates for the Shares so purchased to
be delivered to Optionee or Optionee's personal representatives,
heirs or legatees at its principal business office, following
receipt of the notice of exercise and payment in full of the
Option Price and any required withholding taxes. Payment of the
Option Price shall be made in United States dollars in the form
of cash, certified check or bank draft, or if the Committee so
determines, by delivery to the Company of shares of Common Stock
which the Optionee has owned for at least six months or by
withholding Shares with respect to which the Optionee has
exercised the Option having a Fair Market Value on the date of
exercise equal to the sum of the Option Price for the withheld
Shares and the remaining Shares with respect to which the
Optionee has exercised the Option or any combination of such
methods of payment. Shares shall be valued at Fair Market Value
on the date of exercise.
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<PAGE> 3
5. The unexercised portion of the Option (both vested
and non-vested) shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of
the following:
5.1 The tenth anniversary of the Date of Grant;
5.2 Subject to the provisions of Section 5.3 and
5.4 below, 30 days following the date of termination of
Optionee's service as an Employee or a Key Contractor; provided,
however, that if following such termination as an Employee,
Optionee is retained as a Key Contractor or if following such
termination as a Key Contractor Optionee is retained as an
Employee, the Board or the Committee, in their sole discretion,
may continue the Option for the balance of the term with respect
to all or any portion of the Shares covered by it (in which case
the Option shall not be deemed to have terminated) or may permit
the termination to stand. Any such continuation shall not be
deemed the grant of a new option.
5.3 If the Optionee retires as an Employee of the
Company with the consent of the Company, the Option (both vested
and non-vested) shall expire on the date of retirement, except
for any portion thereof which was otherwise exercisable on the
date of retirement, which shall expire unless exercised within a
period of 90 days after the date of retirement.
5.4 If Optionee dies while an Employee or Key
Contractor of the Company or within the 30 day period following
the date of termination of Optionee's status as an Employee or
Key Contractor (described in Section 5.2) or the 90 day period
following retirement with the consent of the Company (described
in Section 5.3), any unexercised portion of the Option which was
otherwise exercisable on the date of death shall be exercisable
by the representative of the estate or the heirs or legatees of
the Optionee at any time within the one year period from date of
death.
5.5 If the Optionee's services with the Parent,
the Company or any Subsidiary are terminated because of the
Optionee's violation of his duties to the Parent, the Company or
any Subsidiary, including but not limited to, violation of
Optionee's obligations contained in any agreement with the
Parent, the Company or any Subsidiary, or Optionee's violation of
any other obligation written or otherwise to the Parent, Company
or any Subsidiary, as he may from time to time have, the
existence of which violation shall be determined by the Committee
in its sole discretion (which determination shall be conclusive),
the Option shall terminate immediately as of the time of
termination of the Optionee's services and the Optionee shall
have no right after such termination to exercise any Option the
Optionee might have exercised prior to his termination of
service.
-3-
<PAGE> 4
5.6 In no event, however, shall the Option be
exercisable after the expiration of ten years from the Date of
Grant. Nothing in this Section 5 shall cause the Option to vest
other than in accordance with the provisions of Section 3.
6. The parties hereto acknowledge that any breach of
the Optionee of the non-competition covenant in any agreement
with the Parent, the Company or any Subsidiary, the Optionee
would cause irreparable damage to the Company. Accordingly,
notwithstanding anything to the contrary contained herein, any
breach or threatened breach by Optionee of the foregoing
non-competition clause shall entitle the Company, in addition to
any other legal and equitable remedies available to it, to
declare forfeited any and all stock options granted by the
Company to the Optionee, whether or not such options have vested
or been exercised. The parties further agree that upon
forfeiture, the Company is entitled to recover, and Optionee will
disgorge to the Company, any profits or proceeds acquired from
the Option. The forfeiture provision shall survive the
termination of any such agreement and thereafter expire
concurrently with the expiration date set forth in the
non-competition covenant.
The parties hereto understand and intend that the
foregoing provisions shall be construed as separable and
divisible, and the unenforceability of any restriction will not
affect the enforceability of the remaining restrictions and that
one or more or all of such restrictions may be enforced in whole
or in part as the circumstances warrant. Should any court find
any provision of such agreement unenforceable, the parties hereby
agree that it is their intent to narrow the scope of such
provision, including, without limitation, the forfeiture
provision, in order to enforce its intent to the broadest extent
permissible.
7. In case the Company is merged or consolidated with
another corporation, or in case of a reorganization, separation,
or liquidation of the Company, the Board or the board of
directors of any corporation assuming the obligations of the
Company under the Plan shall either (i) make appropriate
provisions for the protection of the Option by the substitution
on an equitable basis of appropriate securities of the Company,
or appropriate securities of the merged, consolidated, or
otherwise reorganized corporation, or the appropriate adjustment
in the Option Price, or both, or (ii) give written notice to the
Optionee that the Option must be exercised, to the extent
exercisable after giving due effect to Section 7.5 of the Plan,
within 60 days of the date of such notice or the Option will
terminate.
8. The Option shall not be assignable or transferable
except by will or by the laws of descent and distribution, and
the Option may not be exercised other than by the Optionee or,
after the death of the Optionee, by his personal representative,
heirs or legatees.
-4-
<PAGE> 5
9. The Optionee shall have no rights as a stockholder
with respect to the Shares until the date the Company has issued
and delivered the Shares to the Optionee, and the Optionee's name
shall have been entered as the stockholder of record on the books
of the Company and then only as to such Shares as are actually
issued and delivered to the Optionee.
10. The Company may require the Optionee to represent
to the Company, in writing, when the Option is exercised, that
the Optionee is exercising the Option for the Optionee's own
account for investment only and not with a view to distribution
and that the Optionee will not make any sale, transfer or other
disposition of any Shares purchased except (i) pursuant to a
registration statement filed under the Securities Act of 1933, as
amended, which the Securities and Exchange Commission has
declared effective, (ii) pursuant to an opinion of counsel
satisfactory in form and substance to the Company that the sale,
transfer or other disposition may be made without registration,
or (iii) pursuant to a "no action" letter issued to the Optionee
by the Securities and Exchange Commission. The Company may
require each share certificate representing Shares to bear a
legend stating that the Shares evidenced thereby may not be sold
or transferred except in compliance with the Securities Act of
1933, as amended, and the provisions of the Option and the Plan.
Notwithstanding anything contained herein to the contrary, the
Option shall not be exercisable at a time when the exercise
thereof may result in the violation of any law or governmental
order or regulation.
11. The aggregate number of Shares purchasable under
the Option and the Option Price for the Shares shall all be
proportionately adjusted, as deemed appropriate by the Committee,
if the Company's shares of Common Stock are split-up, converted,
exchanged, reclassified, or in any way substituted for. The
Committee shall also provide for appropriate adjustments of the
number of Shares purchasable under the Option in the event of
stock dividends or distributions of assets or securities of other
companies owned by the Company to stockholders relating to its
Common Stock for which the record date is prior to the date the
Shares purchased by exercise of the Option are issued, except
that no such adjustment shall be made for extraordinary cash
dividends of 10% or less of the Fair Market Value of the Common
Stock or stock dividends of 10% or less. Any such adjustment may
include an adjustment of the Option Price or the number of Shares
for which the Option may be exercised, or may provide for an
escrow of assets or securities so distributed to be available
upon future exercise, or a combination thereof, as the Committee
deems appropriate. In the event of a change in the Company's
presently authorized Common Stock which is limited to a change of
all of its presently authorized shares of Common Stock with par
value into the same number of shares without par value, or any
change of the then authorized shares of Common Stock with par
value into the same number of shares with a different par value,
the shares resulting from any such change shall be deemed to be
-5-
<PAGE> 6
Shares, and no change in the number of Shares covered by the
Option or in the Option Price shall take place.
12. If the Parent, the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state
or local tax rules or regulations in respect of the payment of
cash or the issuance of Shares pursuant to the exercise of the
Option, the Parent, the Company or such Subsidiary shall be
entitled to deduct and withhold such amounts from any cash
payments to be made to the Optionee. In any event, the Optionee
shall (i) make available to the Parent, the Company or such
Subsidiary, promptly when requested by the Parent, the Company or
such Subsidiary, sufficient funds to meet the requirements of
such withholding, or, (ii) to the extent permitted by the
Committee, irrevocably authorize the Company to withhold from the
Shares otherwise issuable to the Optionee as a result of such
exercise a number of Shares having a Fair Market Value, as of the
date the withholding tax obligation arises (the "Tax Date") which
alone, or when added to funds paid to the Parent, the Company or
such Subsidiary by the Optionee equal the amount of the minimum
withholding tax obligation (the "Withholding Election") and the
Parent, the Company or such Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to
have such funds made available to the Parent, the Company or such
Subsidiary out of any funds or property due or to become due to
the Optionee. The Committee or the Board may establish such
rules and procedures as they deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of the Option.
13. If at any time an Optionee is indebted to the
Company, the Company may in the discretion of the Committee (a)
withhold from the Optionee (i) following the exercise by an
Optionee of an Option, Shares issuable to the Optionee having a
Fair Market Value on the date of exercise up to the amount of
indebtedness to the Company or (ii) following the sale by an
Optionee of Shares received pursuant to the exercise of an
Option, amounts due to an Optionee in connection with the sale of
such Shares up to the amount of indebtedness to the Company, or
(b) take any substantially similar action.
14. Nothing in the Plan or this Option Certificate
shall confer (or be deemed to confer) upon the Optionee any right
to continue in the employ or continue to be retained by the
Parent, the Company or any Subsidiary or interfere in any way
with the right of the Parent, the Company or any Subsidiary to
terminate the Optionee's employment or retention at any time.
15. Each notice relating to the Option shall be in
writing and delivered in person or by certified mail to the
proper address, Each notice to the Company shall be addressed to
it at: MEDICAL MARKETING GROUP, INC., 100 Summit Avenue,
Montvale, New Jersey 07645, Attention: Vice President -
Treasurer. Each notice to Optionee shall be addressed to
Optionee at Optionee's address set forth below. Anyone to whom a
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<PAGE> 7
notice may be given under the Option may designate a new address
by notice to that effect. Each notice shall be deemed to have
been given on the day it was received. The Company may require
that any notice be on a specified form established by the
Company.
16. The Option and this Option Certificate are issued
to, and are subject to all of the terms and conditions of the
Plan, the terms, conditions and definitions of which are hereby
incorporated as though set forth at length, and the receipt of a
copy of which the Optionee hereby acknowledges by this signature
below. A determination by the Committee as to any questions
which may arise with respect to the interpretation of the
provisions of the Option or the Plan shall be final. The
Committee may, from time to time, authorize and establish such
rules, regulations and revisions thereof not inconsistent with
the provisions of the Plan, as it may deem advisable. Optionee
agrees to comply with all such rules, regulations and revisions.
The Option shall be governed by the laws of the State of Delaware
applicable to agreements made and to be fully performed therein.
17. All references to the masculine gender shall be
deemed to include the feminine gender, as the context may
require.
WITNESS the signature of the Company's duly authorized
officer and the Optionee.
MEDICAL MARKETING GROUP, INC.
By:_______________________
Douglas W. Wamsley
Vice President - Legal
ACCEPTED AND AGREED TO:
By:_______________________
Optionee
(Address)
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<PAGE> 1
EXHIBIT 4.5
MEDICAL MARKETING GROUP, INC.
1991 SPECIAL NON-QUALIFIED STOCK OPTION PLAN
1. Definitions. The terms below shall be defined as
indicated.
1.1 Board means the Board of Directors of the
Company.
1.2 Code means the Internal Revenue Code of 1986,
as amended from time to time, or any successor statute thereto.
1.3 Committee means the Stock Option Plan Committee
of the Board described in Section 3 or such other committee as the
Board may appoint from time to time to administer the Plan.
1.4 Common Stock means the Company's common stock,
par value $.01, subject to the provisions of Section 9.
1.5 Company means Medical Marketing Group, Inc., a
Delaware corporation, and any successor corporation which adopts
the Plan.
1.6 Designated Officer means any officer of the
Company that the Board or the Committee may designate pursuant to
Section 3 to act on their behalf with respect to the Plan.
1.7 Exchange Act means the Securities Exchange Act
of 1934, as amended from time to time, or any successor statute
thereto.
1.8 Fair Market Value means, on a specified date,
the last sales price of a Share traded on the over-the-counter
market, as reported on the National Association of Securities
Dealers Automated Quotation System, or the last closing price for
a Share on the stock exchange, if any, on which Shares are
primarily traded (or if no Shares were traded on such date, then
on the last previous date on which any Shares were so traded), or
if none of the above is applicable, the value of a Share for such
date as established by the Committee, using any reasonable method
of valuation.
1.9 Key Contractors means consultants, agents and
other persons (including officers) engaged by the Company, or by a
Subsidiary, to render services to or on behalf of the Company or a
Subsidiary.
1.10 Employees means persons employed by the Company
or a Subsidiary on a full-time basis (including officers), who are
compensated for such employment by a regular salary.
<PAGE> 2
1.11 Option means an option to purchase Shares
granted by the Company pursuant to the Plan.
1.12 Option Agreement means a written agreement as
described in Section 7 between the Company and the Optionee
evidencing an Option.
1.13 Option Period means the period from the date of
the granting of an Option to the date on which that Option can no
longer be exercised.
1.14 Option Price means the price to be paid for the
Shares purchased pursuant to an Option.
1.15 Optionee means any person who is granted an
Option under the Plan.
1.16 Parent means a parent of the Company as defined
under Section 424 of the Code, including, without limitation,
Medco Containment Services, Inc.
1.17 Plan means the Company's 1991 Special
Non-Qualified Stock Option Plan, as adopted by the Board in
substantially the form set forth herein and as the same may be
amended or otherwise modified from time to time.
1.18 Shares means shares of Common Stock.
1.19 Subsidiary means a subsidiary of the Company as
defined under Section 424 of the Code.
2. Purpose. The Plan is intended to encourage
ownership of Common Stock by Employees and Key Contractors, upon
whose judgment and interest the Company is dependent for its
successful operation and growth, in order to increase their
proprietary interest in the Company's success and to encourage
them to remain in the employ of the Company.
3. Administration.
3.1 Committee. The Plan shall be administered by
the Board or, if the Board so determines, by a Committee appointed
by the Board from among its members. The Board or the Committee
may designate one or more Designated Officers, each of whom shall
be authorized and empowered to exercise such functions and make
such determinations with respect to the Plan and the
administration thereof as the Board or the Committee shall specify
in the resolution designating such officer. Any provision of the
Plan to the contrary notwithstanding, (a) in the event of any
inconsistency between any action taken by a Designated Officer and
any action taken by the Committee concerning the Plan or any
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<PAGE> 3
Options hereunder, the action taken by the Committee shall govern,
(b) in the event of any inconsistency between any action taken by
a Designated Officer or the Committee and any action taken by the
Board concerning the Plan or any Options hereunder, the action
taken by the Board shall govern and (c) no Designated Officer may
take any action except to the extent authorized to do so by a
resolution of the Board or the Committee.
3.2 Determination of Option Terms. Subject to the
provisions of Section 12, the Board, the Committee or any
Designated Officer shall have authority to determine the vesting
and exercise schedule with respect to Options, the persons to whom
Options shall be granted, the number of Shares to be covered by
each Option, the time or times at which Options shall be granted
and the terms and provisions of the Options, and to make all other
determinations necessary or advisable for the administration of
the Plan; provided, however, that in no event shall the vesting
schedule for any Option permit the Option to become exercisable
during the first five years in which the Option is outstanding at
an average rate per year of more than 20% of the total number of
shares issuable under the Option, except that in connection with
the grant of such Option, the Board, the Committee or any
Designated Officer then serving as the President or a Senior
Executive Vice President of the Company may waive such
limitation. Subject to the consent of any Optionee affected, the
Board, the Committee or any Designated Officer may cancel any
outstanding Options and issue new Options upon such terms and upon
such conditions as the Board, the Committee or such Designated
Officer may determine.
3.3 Interpretation and Construction. The
interpretation and construction by the Board, the Committee or any
Designated Officer of any provision of the Plan or of any Option
Agreement shall be final and conclusive.
4. Eligible Persons. The Board, the Committee or any
Designated Officer, as the case may be, may grant Options only to
Employees or Key Contractors; provided, however, that no Option
shall be granted to any individual who, at the time such Option is
granted, is an "officer" of the Company, as such term is defined
in Rule 16a-1(f) under the Exchange Act.
5. Grant of Options.
5.1 Procedure. Subject to the provisions of
Section 8.1. the Board, the Committee or any Designated Officer
may (but shall not be required to) grant Options, provided that
the person to whom the Option is to be granted subsequently
becomes a party to an Option Agreement.
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<PAGE> 4
5.2 Additional Grants. Nothing contained in the
Plan shall be construed to preclude the granting of an Option or
Options to an Optionee in addition to an Option or Options for the
purchase of Shares already held by that Optionee or the granting
of more than one Option to an Optionee at the same time.
5.3 Subject to Exchange Rules. Any and all grants
of Options shall be subject to all applicable rules and
regulations of any exchange on which the Company's Common Stock
may then be listed.
6. Effective and Expiration Dates of Plan. The Plan
shall be effective on July 1, 1991. No Option shall be granted
after June 30, 2001.
7. Option Agreements. Option Agreements shall be in
such form as the Board, the Committee or any Designated Officer
shall approve or determine; provided, however, that all Option
Agreements shall comply with and be subject to the following terms
and conditions:
7.1 Manner, Time, and Medium of Payment. An Option
shall be exercised in the manner set forth in the Option Agreement
relating thereto and payment in full of the Option Price for all
Shares shall be made at the time of exercise. Payment shall be in
United States dollars in the form of cash, certified check or bank
draft, or with the consent of the Committee, by delivery of fully
paid Shares valued at their Fair Market Value on the date of
exercise, or, if the Board, the Committee or any Designated
Officer so determines, by withholding Shares with respect to which
the Optionee has exercised such Option having a Fair Market Value
on the date of exercise equal to the sum of the Option Price for
the withheld Shares and the remaining Shares with respect to which
the Optionee has exercised such option, or any combination of such
methods of payment.
7.2 Number of Shares. Subject to Section 9, the
Option Agreement shall state the number of Shares to which it
pertains.
7.3 Option Price. The Option Price shall be
determined by the Board, the Committee or any Designated Officer.
Notwithstanding the foregoing, subject to Section 9, except for
options which are given in substitution for options of any parent,
subsidiary, predecessor to or party to a merger or reorganization
with or into the Company, the Option Price shall not be less than
the Fair Market Value of a Share on the date the Option is granted.
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<PAGE> 5
7.4 Option Period. Each Option granted under the
Plan shall expire no later than fifteen years from the date the
Option is granted. Any Option Agreement may contain provisions
for the earlier expiration of the Option in the event of the
Optionee's termination of employment, retirement or death or in
the event of a violation by an Optionee of any of such Optionee's
duties to the Company or any Subsidiary.
7.5 Date of Exercise. An Option may be exercised,
to the extent vested, in whole or in part from time to time during
the Option Period. Notwithstanding the foregoing, (i) the Board,
the Committee or any Designated Officer in his, her or its sole
discretion may determine at the time of grant of any Option that
such Option shall not become exercisable before a specified time
but at such specified time shall become exercisable as to all
Shares as to which the Option has previously vested, and (ii) an
Option shall become exercisable in full or in part, whether or not
it is then exercisable, upon such circumstances or events as the
Board, the Committee or any Designated Officer determines, in his,
her or its sole discretion.
7.6 Reorganization. In case the Company is merged
or consolidated with another corporation, or in case of a
reorganization, separation or liquidation of the Company, the
Board or the board of directors of any corporation assuming the
obligations of the Company hereunder shall either (i) make
appropriate provisions for the protection of any outstanding
options by the substitution on an equitable basis of appropriate
securities of the Company, or appropriate shares or other
securities of the merged, consolidated, or otherwise reorganized
corporation, or the appropriate adjustment in the Option Price, or
both, or (ii) give written notice to Optionees that their Options
must be exercised, to the extent then exercisable after giving due
effect to Section 7.5, within 60 days of the date of such notice
or they will terminate, and to the extent that such Options are
not exercised within such 60-day period they shall terminate and
be of no further effect.
7.7 Assignability. No Option shall be assignable
or transferable except by will, by the laws of descent and
distribution or pursuant to a qualified domestic relations order
(as such term is defined in the Code), and no Option may be
exercised other than by an Optionee or, after the death of an
Optionee, by that Optionee's personal representatives, heirs, or
legatees.
7.8 Violation of Agreements. The Board, the
Committee or any Designated Officer, in his, her or its sole
discretion may require that any Option Agreement include
provisions that in the event of a violation by the Optionee of his
or-her duties to the Company or any Subsidiary (whether before or
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<PAGE> 6
after termination of the Optionee's services), the existence of
which violation shall be determined by the Board, the Committee or
any Designated Officer in his, her or its sole discretion (which
determination shall be conclusive), the Optionee shall remit to
the Company all income that he or she has realized during the
twenty-four month period prior to such violation, or that he or
she subsequently realizes, as a result of his or her exercise from
time to time, in whole or in part, of the Option, before federal,
state or local taxes.
7.9 No Right to Continue with Company. Nothing in
the Plan or in any Option granted under the Plan shall confer (or
be deemed to confer) any right on any Optionee to continue as an
Officer or as an employee of the Company or any Subsidiary or
shall interfere in any way with the right of the Company or any
Subsidiary to terminate such status at any time, with or without
cause and with or without notice.
7.10 Rights as a Stockholder. An Optionee shall
have no rights as a stockholder with respect to Shares covered by
any Option until the date the Company has issued or delivered such
Shares to the Optionee, and then only as to such Shares as are
actually issued and delivered to the Optionee.
7.11 Other provisions. Option Agreements shall
contain such other terms and conditions not inconsistent with the
Plan as the Board, the Committee or any Designated Officer shall
deem advisable.
7.12 Compliance with Law. Notwithstanding any
provision of the Plan or any Option Agreement to the contrary, no
Option may be granted or exercised at any time when such Option or
the granting or exercise thereof or payment therefor may result in
the violation of any law or governmental order or regulation.
7.13 Securities Laws. The Company intends to
register the Shares issuable pursuant to exercise of Options under
the Securities Act of 1933, as amended, and to effect similar
compliance under applicable state laws, but shall be under no
obligation to do so. The Board, the Committee or any Designated
Officer may require, as a condition of the issuance and delivery
of certificates evidencing Shares issuable pursuant to exercise of
Options, that the Optionee make such covenants, agreements and
representations, including, without limitation, as to compliance
with applicable securities laws, and that such certificates bear
such legends, as the Board, the Committee or such Designated
Officer in his, her or its sole discretion deems necessary or
desirable.
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<PAGE> 7
8. Shares Available for Option.
8.1 Maximum. Subject to Sections 7.6 and 9, no
more than 400,000 Shares shall be subject to purchase pursuant to
Options granted under the Plan, which Shares may be either Shares
held in treasury or authorized but unissued Shares. At all times
during the term of the Plan, the Company shall have reserved that
number of Shares less an amount equal to the number of Shares held
in treasury and the number of Shares which have been issued
pursuant to the exercise of Options. At all times after
termination of the Plan, the Company shall have reserved for
issuance a number of Shares equal to the aggregate number of
Shares subject to outstanding Options less the number of Shares
held in treasury.
8.2 Expiration or Termination. If any outstanding
Option under the Plan expires for any reason or is terminated
prior to the expiration date of the Plan as set forth in Section
6, the Shares allocable to any unexercised portion of such Option
may again be subject to an Option.
9. Recapitalization or Change in Par Value of Common
Stock. The aggregate number of Shares purchasable under Options
granted and which may be granted pursuant to the Plan and the
Option Price for Shares covered by each outstanding Option shall
all be proportionately adjusted, as deemed appropriate by the
Board, the Committee or any Designated Officer if the Shares are
split up, converted, exchanged, reclassified or in any way
substituted for. The Board, the Committee or such Designated
Officer shall provide for appropriate adjustments of the numbers
of shares purchasable under the Plan and of outstanding Options in
the event of stock dividends or distributions of assets or
securities of other companies owned by the Company to stockholders
relating to Common Stock for which the record date is prior to the
date the Shares purchased by exercise of an Option are issued or
transferred, except that no such adjustment shall be made for
cumulative stock dividends of 10% or less (in the aggregate) or
cash dividends. Any such adjustment may include an adjustment of
the Option Price or the number of Shares for which an Option may
be exercised, or may provide for an escrow of assets or securities
so distributed to be available upon future exercise. In the event
of a change in the Company's presently authorized Common Stock
which is limited to a change of all of its presently authorized
Shares of Common Stock with par value into the same number of
shares without par value, or any change of the then authorized
Shares of Common Stock with par value into the same number of
shares of Common Stock with a different par value, the shares
resulting from any such change shall be deemed to be Shares as
defined in Section 1, and no change in the number of Shares
covered by each Option or in the Option Price shall take place.
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<PAGE> 8
10. Indemnification; Reliance; Exculpation.
10.1 Indemnification. Each person who is or shall
have been a member of the Board or of the Committee and each
Designated Officer shall be indemnified and held harmless by the
Company against and from any and all loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by such
person in connection with or resulting from any claim, action,
suit, or proceeding to which such person may be a party or in
which such person may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all
amounts paid by such person in settlement thereof (with the
Company's written approval) or paid by such person in satisfaction
of a judgment in any such action, suit, or proceeding to the
fullest extent permitted by the Delaware General Corporation Law,
subject, however, to the condition that upon the institution of
any such claim, action, suit, or proceeding, such person shall in
writing give the Company an opportunity to intervene at the
Company's expense on his or her behalf. The foregoing right of
indemnification shall not be exclusive of any other right to which
such person may be entitled as a matter of law or otherwise, or
any power that the Company may have to indemnify such person or
hold him or her harmless.
10.2 Reliance. Each member of the Board or of the
Committee, each Designated Officer and each other officer and
employee of the Company in performing duties under the Plan shall
be entitled to rely upon information and reports furnished in
connection with the administration of this Plan by any duly
authorized officer or agent of the Company.
10.3 Exculpation. No member of the Board or of the
Committee and no Designated Officer shall be liable for any action
or determination made in good faith with respect to the Plan or
any Option granted under the Plan.
11. Income Tax Withholding. The Board, the Committee or
any Designated Officer in his, her or its sole discretion may
require that any Option Agreement include provisions that if the
Company or a Subsidiary shall be required to withhold any amounts
by reason of any federal, state or local tax rules or regulations
in respect of the issuance of Shares pursuant to the exercise of
an Option, the Company or the Subsidiary shall be entitled to
deduct and to withhold such amount from any cash payments to be
made to the Optionee. In any event, the Optionee shall either (i)
make available to the Company or Subsidiary, promptly when
requested by the Company or such Subsidiary, sufficient funds or,
if the Option Agreement so provides, Shares (valued at Fair Market
Value as of the date the withholding tax obligation arises (the
"Tax Date")), to meet the requirements of such withholding, or
(ii) to the extent permitted by the Board, the Committee or any
Designated Officer, irrevocably authorize the Company to withhold
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<PAGE> 9
from the Shares otherwise issuable to the Optionee as a result of
such exercise a number of Shares having a Fair Market Value as of
the Tax Date which alone, or when added to funds paid or Shares
delivered to the Company or the Subsidiary by the Optionee, equal
the amount of the minimum withholding tax obligation (the
"Withholding Election") and the Company or such Subsidiary shall
be entitled to take and authorize such steps as it may deem
advisable in order to have such funds or Shares made available to
the Company or such Subsidiary out of any funds or property due or
to become due to the Optionee. An Optionee's Withholding Election
may only be made prior to the Tax Date and may be disapproved by
the Board, the Committee or any Designated Officer. The Board,
the Committee or any Designated Officer may establish such rules
and procedures as he, she or it may deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of any Option.
12. Amendment or Termination of Plan. The Plan may be
terminated and may be modified or amended by the Board or the
Committee at any time and from time to time; provided, however,
that no such termination, modification, or amendment of the Plan
shall alter or affect the terms of any then outstanding Options
previously granted hereunder without the consent of the holder
thereof.
13. Set-Off. If at any time an Optionee is indebted to
the Company or any Subsidiary, the Company may in the discretion
of the Board, the Committee or any Designated Officer (a) withhold
from the Optionee (i) following the exercise by the Optionee of an
Option, Shares issuable to the Optionee having a Fair Market Value
on the date of exercise up to the amount of indebtedness to the
Company or (ii) following the sale by an Optionee of Shares
received pursuant to the exercise of an Option, amounts due to an
Optionee in connection with the sale of such Shares up to the
amount of indebtedness to the Company, or (b) take any
substantially similar action. The Board, the Committee or any
Designated Officer may establish such rules and procedures as he,
she or it may deem necessary or advisable in connection with the
taking of any action contemplated by this Section 13.
14. Headings. The section headings contained herein
have no substantive meaning or content and are not part of this
Plan.
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<PAGE> 1
EXHIBIT 4.6
1991 SPECIAL NON-QUALIFIED STOCK OPTION
(Non-Assignable)
For Shares~ Shares
To Purchase Common Stock of
MEDICAL MARKETING GROUP, INC.
Issued Pursuant to the 1991 Special Non-Qualified
Stock Option Plan of Medical Marketing Group, Inc. (the "Plan")
THIS CERTIFIES that as of Date~, 1992 (the "Date of
Grant") Name~ (the "Optionee") was granted an option (the
"Option") to purchase at the Option Price of $Amount~ per share
all or any part of type out shares~ (# of shares~ ) fully paid and
non-assessable shares (the "Shares") of the common stock, $.01
par value ("Common Stock", of MEDICAL MARKETING GROUP, INC. (the
"Company"), a Delaware corporation, upon and subject to the
following terms and conditions:
1. Unless other indicated herein to the contrary,
capitalized terms used in this Option Certificate shall have the
same meaning as used in the Plan. The Optionee is an Employee as
defined in the Plan.
2. The Option shall be for a period of fifteen years
(the "Option Period") and shall terminate on the fifteenth (15th)
anniversary of the Date of Grant unless the Option terminates
sooner pursuant to the terms of the Plan or this Option
Certificate.
3. Subject to the terms and conditions of the Plan and
this Option Certificate, the Option shall vest with respect to
the Shares from and after each anniversary of the Date of Grant
(each, an "Anniversary") in the respective percentages in
accordance with the following schedule:
<TABLE>
<CAPTION>
Anniversary of Grant Percentage
-------------------- ----------
<S> <C>
First Anniversary 15%
Second Anniversary 17.5%
Third Anniversary 20%
Fourth Anniversary 22.5%
Fifth Anniversary 25%
</TABLE>
<PAGE> 2
The foregoing vesting is on a cumulative basis. Notwithstanding
the foregoing, the Board, the Committee or any Designated Officer
may determine that the Option shall become exercisable in full or
in part, whether or not it is then exercisable; provided,
however, that the Option shall not become exercisable in full or
in part, whether or not it is then exercisable, upon such
circumstances or events as the Board, the Committee or any
Designated Officer determines, in his, her or its sole
discretion, merit special consideration.
4. The Optionee (or any other person permitted to
exercise the Option pursuant to the terms hereof) may exercise
the Option by giving written notice of exercise to the Company at
its principal business office, specifying the number of Shares
for which the Option is exercised, accompanied by payment in full
of the Option Price for such Shares (together with any amount
required for payroll withholding tax). If the Company has
established a form for notice of exercise, the Optionee shall use
such form. The Company shall cause certificates for the Shares
so purchased to be delivered to the Optionee or such other person
permitted to exercise the Option pursuant to the terms hereof at
the Company's principal business office, following receipt of the
notice of exercise and payment in full of the Option Price and
any required withholding taxes. Payment of the Option Price
shall be made in United States dollars in the form of cash,
certified check or bank draft, or, with the consent of the
Committee, by delivery to the Company of fully paid Shares valued
at their Fair Market Value on the date of exercise or, if the
Board, the Committee or any Designated Officer so determines, by
withholding Shares with respect to which the Optionee has
exercised the Option having a Fair Market Value on the date of
exercise equal to the sum of the Option Price for the withheld
Shares and the remaining Shares with respect to which the
Optionee has exercised the Option, or any combination of such
methods of payment.
5. The unexercised portion of the Option (both vested
and non-vested) shall automatically and without notice terminate
and become null and void on the fifteenth anniversary of the Date
of Grant, subject, however, to the following:
5.1 Subject to the provisions of Section 5.2 and
5.3 below, the Option shall expire 30 days following the date of
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<PAGE> 3
termination of the Optionee's service as an Employee or a Key
Contractor unless (i) following such termination as an Employee
the Optionee is retained as a Key Contractor following such
termination as a Key Contractor the Optionee is retained as a Key
Employee and (ii) the Board, the Committee or any Designated
Officer, in his, her or its sole discretion, elects in writing to
continue the Option for the balance of the term with respect to
all or any portion of the Shares covered by it (in which case the
Option shall not be deemed to have terminated). Any such
continuation shall not be deemed the grant of a new option.
5.2 If the Optionee retires as an Employee with
the consent of the Company, the Option (both vested and non-
vested) shall expire on the date of retirement, except for any
portion thereof which was otherwise exercisable on the date of
retirement, which shall expire unless exercised within a period
of 90 days after the date of retirement.
5.3 If the Optionee dies while an Employee or Key
Contractor or within the 30 day period following the date of
termination of the Optionee's status as an Employee or Key
Contractor (described in Section 5.1) or the 90 day period
following retirement with the consent of the Company (described
in Section 5.2), any unexercised portion of the Option which was
otherwise exercisable on the date of death shall be exercisable
by the representative of the estate or the heirs or legatees of
the Optionee at any time within the one year period from date of
death.
5.4 If the Optionee's services with the Parent,
the Company or any Subsidiary are terminated because of the
Optionee's violation of his or her duties to the Parent, the
Company or any Subsidiary, including but not limited to,
violation of the Optionee's obligations contained in any
agreement with the Parent, the Company or any Subsidiary, or the
Optionee's violation of any other obligation, written or
otherwise, to the Parent, the Company or any Subsidiary, as the
Optionee may from time to time have, the existence of which
violation shall be determined by the Board, the Committee or any
Designated Officer in his, her or its sole discretion (which
determination shall be conclusive), the Option shall terminate
immediately as of the time of such determination and the Optionee
shall have no right after such determination to exercise any
portion of the Option that the Optionee might have exercised
prior to such determination.
5.5 In no event, however, shall the Option be
exercisable after the expiration of fifteen years from the Date
of Grant. Nothing in this Section 5 shall cause the Option to
vest other than in accordance with the provisions of Section 3.
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<PAGE> 4
6. The parties hereto acknowledge that any breach by
the Optionee of the non-competition covenant in any agreement
with the Parent, the Company or any Subsidiary would cause
irreparable damage to the Company. Accordingly, notwithstanding
anything to the contrary contained herein, any breach or
threatened breach by the Optionee of the foregoing non-
competition clause shall entitle the Company, in addition to any
other legal and equitable remedies available to it, to declare
forfeited any and all stock options granted by the Company to the
Optionee, whether or not such options have vested or been
exercised. The parties further agree that upon forfeiture, the
Company Is entitled to recover, and the Optionee will disgorge to
the Company, any profits or proceeds acquired from the Option
within the twelve months preceding such forfeiture. The
forfeiture and disgorgement provisions shall survive the
termination of any such agreement and thereafter expire
concurrently with the expiration date set forth in the non-
competition covenant. The parties acknowledge that such
forfeiture and disgorgement shall constitute liquidated damages
for the Optionee's breach of such non-competition covenant.
The parties hereto understand and intend that the
foregoing provisions shall be construed as separable and
divisible, and the unenforceability of any restriction will not
affect the enforceability of the remaining restrictions and that
one or more or all of such restrictions may be enforced in whole
or in part as the circumstances warrant. Should any court find
any provision of such agreement unenforceable, the parties hereby
agree that it is their intent to narrow the scope of such
provision, including, without limitation, the forfeiture
provision, in order to enforce its intent to the broadest extent
permissible.
7. In case the Company is merged or consolidated with
another corporation, or in case of a reorganization, separation,
or liquidation of the Company, the Board or the board of
directors of any corporation assuming the obligations of the
Company under the Plan shall either (i) make appropriate
provisions for the protection of the Option by the substitution
on an equitable basis of appropriate securities of the Company,
or appropriate shares or other securities of the merged,
consolidated, or otherwise reorganized corporation, or the
appropriate adjustment in the Option Price, or both, or (ii) give
written notice to the Optionee that the Option must be exercised,
to the extent exercisable after giving due effect to Section 7.5
of the Plan, within 60 days of the date of such notice or the
Option will terminate, and to the extent that the Option is not
exercised within such 60-day period it shall terminate and be of
no further effect.
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<PAGE> 5
8. The Option shall not be assignable or transferable
except by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order (as such term is
defined in the Code), and the Option may not be exercised other
than by the Optionee or, after the death of the Optionee, by the
Optionee's personal representative, heirs or legatees.
9. The Optionee shall have no rights as a stockholder
with respect to the Shares until the date the Company has issued
and delivered the Shares to the Optionee, and the Optionee's name
shall have been entered as the stockholder of record on the books
of the Company, and then only as to such Shares as are actually
issued and delivered to the Optionee.
10. The Company may require the Optionee to represent
to the Company, in writing, when the Option is exercised, that
the Optionee is exercising the Option for the Optionee's own
account for investment only and not with a view to distribution
and that the Optionee will not make any sale, transfer or other
disposition of any Shares purchased except (i) pursuant to a
registration statement filed under the Securities Act of 1933, as
amended, which the Securities and Exchange Commission has
declared effective, (ii) pursuant to an opinion of counsel
satisfactory in form and substance to the Company that the sale,
transfer or other disposition may be made without registration,
or (iii) pursuant to a "no action" letter issued to the Optionee
by the Securities and Exchange Commission. The Company may
require each share certificate representing Shares to bear a
legend stating that the Shares evidenced thereby may not be sold
or transferred except in compliance with the Securities Act of
1933, as amended, and the provisions of this Option Certificate
and the Plan. Notwithstanding anything contained herein to the
contrary, the Option shall not be exercisable at a time when the
exercise thereof may result in the violation of any law or
governmental order or regulation.
11. The aggregate number of Shares purchasable under
the Option and the Option Price for the Shares shall be
proportionately adjusted, as deemed appropriate by the Board, the
Committee or any Designated Officer, if the Company's shares of
Common Stock are split up, converted, exchanged, reclassified, or
in any way substituted for. The Board, the Committee or any
Designated Officer shall also provide for appropriate adjustments
of the number of Shares purchasable under the Option in the event
of stock dividends or distributions of assets or securities of
other companies owned by the Company to stockholders relating to
Common Stock for which the record date is prior to the date the
Shares purchased by exercise of the Option are issued, except
that no such adjustment shall be made for cumulative stock
dividends of 10% or less (in the aggregate) or cash dividends.
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<PAGE> 6
Any such adjustment may include an adjustment of the Option Price
or the number of Shares for which the Option may be exercised, or
may provide for an escrow of assets or securities so distributed
to be available upon future exercise, or a combination thereof,
as the Board, the Committee or any Designated Officer deems
appropriate. In the event of a change in the Company's presently
authorized Common Stock which is limited to a change of all of
its presently authorized shares of Common Stock with par value
into the same number of shares without par value, or any change
of the then authorized shares of common Stock with par value into
the same number of shares with a different par value, the shares
resulting from-any such change shall be deemed to be Shares, and
no change in the number of Shares covered by the Option or in the
Option Price shall take place.
12. If the Parent, the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state
or local tax rules or regulations in respect of the payment of
cash or the issuance of Shares pursuant to the exercise of the
Option, the Parent, the Company or such Subsidiary shall be
entitled to deduct and withhold such amounts from any cash
payments to be made to the Optionee. In any event, the Optionee
shall either (i) make available to the Parent, the Company or
such Subsidiary, promptly when requested by the Parent, the
Company or such Subsidiary, sufficient funds or Shares (valued at
Fair Market Value as of the date the tax withholding obligation
arises (the "Tax Date")) to meet the requirements of such
withholding, or (ii) to the extent permitted by the Board, the
Committee or any Designated Officer, irrevocably authorize the
Company to withhold from the Shares otherwise issuable to the
Optionee as a result of such exercise a number of Shares having a
Fair Market Value as of the Tax Date which alone, or when added
to funds paid to the Parent, the Company or such Subsidiary by
the Optionee, equal the amount of the minimum withholding tax
obligation (the "Withholding Election") and the Parent, the
Company or such Subsidiary shall be entitled to take and
authorize such steps as it may deem advisable in order to have
such funds made available to the Parent, the Company or such
Subsidiary out of any funds or property due or to become due to
the Optionee. The Optionee's Withholding Election may only be
made prior to the Tax Date and may be disapproved by the Board,
the Committee or any Designated Officer. The Board, the
Committee or any Designated Officer may establish such rules and
procedures as he, she or it may deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of the Option.
13. If at any time the Optionee is indebted or
otherwise has a repayment obligation to the Parent, the Company
or any Subsidiary for any reason, the Company may in the
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<PAGE> 7
discretion of the Board, the Committee or any Designated officer
(a) withhold from the Optionee (i) following the exercise of the
Option, Shares issuable to the Optionee having a Fair Market
Value on the date of exercise up to the amount of indebtedness to
the Company or (ii) following the sale by the Optionee of Shares
received pursuant to the exercise of the Option, amounts due to
the Optionee in connection with the sale of such Shares up to the
amount of indebtedness to the Company, or (b) take any
substantially similar action. The Board, the Committee or any
Designated Officer may establish such rules and procedures as he,
she or it may deem necessary or advisable in connection with the
taking of any action contemplated by this Section 13.
14. Nothing in the Plan or this Option Certificate
shall confer (or be deemed to confer) upon the Optionee any right
to continue in the employ or continue to be retained by the
Parent, the Company or any Subsidiary or interfere in any way
with the right of the Parent, the Company or any Subsidiary to
terminate the Optionee's employment or retention at any time,
with or without cause and with or without notice.
15. Each notice relating to the Option shall be in
writing and delivered in person or by certified mail to the
proper address. Each notice to the Company shall be addressed to
it at: MEDICAL MARKETING GROUP, INC., 100 Summit Avenue,
Montvale, New Jersey 07645, Attention: Treasurer. Each notice
to the Optionee shall be addressed to the Optionee at the
Optionee's address set forth below. Anyone to whom a notice may
be given relating to the Option may designate a new address by
notice to that effect. Each notice shall be deemed to have been
given on the day it was received. The Company may require that
any notice be on a specified form established by the Company.
16. The Option and this Option Certificate are issued
to, and are subject to all of the terms and conditions of the
Plan, the terms, conditions and definitions of which are hereby
incorporated as though set forth at length, and the receipt of a
copy of which the Optionee hereby acknowledges by this signature
below. A determination by the Board, the Committee or any
Designated Officer as to any questions which may arise with
respect to the interpretation of the provisions of the Option or
the Plan shall be final and binding upon the Optionee. The
Board, the Committee or any Designated Officer may, from time to
time, authorize and establish such rules, regulations and
revisions thereof not inconsistent with the provisions of the
Plan, as it may deem advisable. The Optionee agrees to comply
with all such rules, regulations and revisions. The Option shall
be governed by the laws of the State of Delaware applicable to
agreements made and to be fully performed therein.
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<PAGE> 8
WITNESS the signature of the Company's duly authorized
officer and the Optionee.
MEDICAL MARKETING GROUP, INC.
By:_______________________
Douglas W. Wamsley
Vice President - Legal
ACCEPTED AND AGREED TO:
By:_______________________
Optionee
(Address)
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<PAGE> 1
EXHIBIT 4.7
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of
July 15, 1991, between MEDICAL MARKETING GROUP, INC., a Delaware
corporation with offices at 100 Summit Avenue, Montvale, New
Jersey 07645 (the "Company"), and MICKI MIKULA ("Optionee").
AGREEMENTS
In consideration of the mutual covenants of this
Agreement, the Company and Optionee agree as follows:
1. Confirmation of Grant of Option. The Company
hereby confirms that Optionee has been granted on July 15, 1991
(the "Date of Grant"), subject to the terms of this Agreement,
the right (the "Option") to purchase 7,500 shares of the common
stock, $.01 par value, of the Company. All of the shares of the
Company's common stock are hereinafter referred to as the "Common
Stock," and the 7,500 shares of Common Stock that are subject to
purchase hereunder are hereinafter referred to as "Shares." Said
number of Shares subject to the Option may be adjusted as
provided in Section 11.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of this
Agreement, the Option shall become exercisable (i.e., "vested"):
2.1.1 with respect to 15% of the Shares, on
and after the first anniversary of the Date of Grant;
2.1.2 with respect to an additional 17.5% of
the Shares, on and after the second anniversary of the Date of
Grant;
2.1.3 with respect to an additional 20% of
the Shares, on and after the third anniversary of the Date of
Grant;
2.1.4 with respect to an additional 22.5% of
the Shares, on and after the fourth anniversary of the Date of
Grant; and
2.1.5 with respect to the remainder of the
Shares, on and after the fifth anniversary of the Date of Grant.
The foregoing vesting is on a cumulative basis. Notwithstanding
the foregoing sentence, in the event of a Change of Control (as
<PAGE> 2
defined below), the Stock Option Committee of the Board of
Directors of the Company (the "Committee") may, in its sole
discretion, determine that the Option shall become exercisable in
full or in part, whether or not it is then exercisable; provided,
however, that the Option shall not become exercisable in full or
in part because of a Change of Control of Medco Containment
Services, Inc. ("Medco"), unless, immediately preceding such
Change in Control, Medco was in "control" of the Company within
the meaning of the Exchange Act. The Committee may also
determine that the Option shall become exercisable, in full or in
part, whether or not it is then exercisable, upon such
circumstances or events as the Committee determines, in its sole
discretion, merits special consideration. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred:
(i) when any "person," as defined in Section 3(a) (9) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and as used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
Exchange Act (but excluding any parent (the "Parent") of
the Company as defined under Section 424 of the Internal
Revenue Code of 1986, as amended (the "Code"), Medco and
the Company (and any successor to the Parent, Medco or the
Company which became a successor to the Parent, Medco or
the Company in a transaction which did not result in a
Change in Control), any subsidiary of the Company as
defined under Section 424 of the Code (a "Subsidiary") or
subsidiary of the Parent or Medco and any employee benefit
plan sponsored or maintained by the Parent or Medco or
their subsidiaries or the Company or any Subsidiary,
including any trustee of such plan acting as trustee)
directly or indirectly becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, as amended
from time to time) of, or makes an offer to purchase,
securities of the Parent, Medco or the Company representing
50 percent or more of the combined voting power of its then
outstanding securities with respect to the election of
directors;
(ii) when, during any period of 24 consecutive months this
Agreement is in effect, the individuals who, at the
beginning of such period, constitute the Board of Directors
of the Parent or Medco or the Board of Directors of the
Company (the "Board"), as the case may be (the "Incumbent
Directors"), cease for any reason other than death to
constitute at least a majority thereof; provided, however,
that a director who was not a director at the beginning of
such 24-month period shall be deemed to have satisfied such
24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or
with the approval of, at least two-thirds of the directors
of the Parent, Medco or the Company, as the case may be,
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<PAGE> 3
who then qualified as Incumbent Directors either actually
(because they were directors at the beginning of such
24-month period) or by prior operation of this Section
3(ii);
(iii) when the shareholders of the Parent, Medco or the Company,
as the case may be, approve a merger or consolidation of
the Parent, Medco or the Company without the consent or
approval of a majority of its Incumbent Directors;
(iv) when there is a sale or disposition of all or substantially
all of the Parent's, Medco's or the Company's assets; or
(v) when the Company, the Parent or Medco adopts a plan of
liquidation.
3. The Option shall not be assignable or transferable
otherwise than by will or by the laws of descent and distribution
and the option may not be exercised other than by the Optionee
or, after the death of the Optionee, by his personal
representatives, heirs or legatees. Without limiting the
generality of the foregoing, the Option may not be assigned,
transferred (except as permitted in the preceding sentence),
pledged or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to levy, attachment or
similar process. Any attempt to assign, transfer, pledge or
hypothecate the Option contrary to the provisions of this
Agreement, and any levy, attachment or similar process upon the
Option shall be null and void and without effect, and the Board
or the Committee may, in its sole discretion, upon the happening
of any such event, terminate the Option as of the date of such
event.
4. The Optionee (or the representative of his estate or
his heirs or legatees) may exercise the Option by giving written
notice of exercise to the Company at its principal business
office, specifying the number of Shares for which the Option is
exercised, accompanied by payment in full of the Option Price for
such Shares (together with any amount required for payroll
withholding tax). If the Company has established a form for
notice of exercise, the Optionee shall use such form. The
Company shall cause certificates for the Shares so purchased to
be delivered to Optionee or Optionee's personal representatives,
heirs or legatees at its principal business office, following
receipt of the notice of exercise and payment in full of the
Option Price and any required withholding taxes. Payment of the
Option Price shall be made in United States dollars in the form
of cash, certified check or bank draft, or by delivery to the
Company of shares of Common Stock which the Optionee has owned
for at least six months, or if the Committee so determines, by
withholding Shares with respect to which the Optionee has
exercised the Option having a Fair Market Value on the date of
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<PAGE> 4
exercise equal to the sum of the Option Price for the withheld
Shares and the remaining Shares with respect to which the
Optionee has exercised the Option or any combination of such
methods of payment. Shares shall be valued at Fair Market Value
on the date of exercise.
5. The unexercised portion of the Option (both vested
and non-vested) shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of
the following:
5.1 The tenth anniversary of the Date of Grant;
5.2 Subject to the provisions of Section 5.3 and
5.4 below, 30 days following the date of termination of
Optionee's service as an employee; provided, however, that if
following such termination as an employee, Optionee is retained
by the Company as a consultant, the Board or the Committee, in
their sole discretion, may continue the Option for the balance of
the term with respect to all or any portion of the Shares covered
by it (in which case the Option shall not be deemed to have
terminated) or may permit the termination to stand. Any such
continuation shall not be deemed the grant of a new option.
5.3 If the Optionee retires as an employee of the
Company with the consent of the Company, the Option (both vested
and non-vested) shall expire on the date of retirement, except
for any portion thereof which was otherwise exercisable on the
date of retirement, which shall expire unless exercised within a
period of 90 days after the date of retirement.
5.4 If Optionee dies while an employee or
contractor of the Company or within the 30 day period following
the date of termination of Optionee's status as an employee or
consultant (described in Section 5.2) or the 90 day period
following retirement with the consent of the Company (described
in Section 5.3), any unexercised portion of the Option which was
otherwise exercisable on the date of death shall be exercisable
by the representative of the estate or the heirs or legatees of
the Optionee at any time within the one year period from date of
death.
5.5 If the Optionee's services with the Parent,
the Company or any Subsidiary are terminated because of the
Optionee's violation of his duties to the Parent, the Company or
any Subsidiary, including but not limited to, violation of
Optionee's obligations contained in any agreement with the
Parent, the Company or any subsidiary, or Optionee's violation of
any other obligation written or otherwise to the Medco, Company
or any Subsidiary, as he may from time to time have, the
existence of which violation shall be determined by the Committee
in its sole discretion (which determination shall be conclusive),
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<PAGE> 5
the Option shall terminate immediately as of the time of
termination of the Optionee's services and the Optionee shall
have no right after such termination to exercise any Option the
Optionee might have exercised prior to his termination of service.
5.6 In no event, however, shall the Option be
exercisable after the expiration of ten years from the Date of
Grant. Nothing in this Section 5 shall cause the Option to vest
other than in accordance with the provisions of Section 3.
6. Subject to adjustment as provided in Section 11, the
purchase price (the "Option Price") of the shares covered by this
Agreement shall be $24.125 per share.
7. The parties hereto acknowledge that any breach of
the Optionee of the non-competition covenant in any agreement
with the Parent, the Company or any Subsidiary, the Optionee
would cause irreparable damage to the Company. Accordingly,
notwithstanding anything to the contrary contained herein, any
breach or threatened breach by Optionee of the foregoing
non-competition clause shall entitle the Company, in addition to
any other legal and equitable remedies available to it, to
declare forfeited any and all stock options granted by the
Company to the Optionee, whether or not such options have vested
or been exercised. The parties further agree that upon
forfeiture, the Company is entitled to recover, and Optionee will
disgorge to the Company, any profits or proceeds acquired from
the Option. The forfeiture provision shall survive the
termination of any such agreement and thereafter expire
concurrently with the expiration date set forth in the
non-competition covenant. The parties acknowledge that said
forfeiture and disgorgement shall constitute liquidated damages
for Optionee's breach of said non-competition covenant. The
parties hereto understand and intend that the foregoing
provisions shall be construed as separable and divisible, and the
unenforceability of any restriction will not affect the
enforceability of the remaining restrictions and that one or more
or all of such restrictions may be enforced in whole or in part
as the circumstances warrant. Should any court find any
provision of such agreement unenforceable, the parties hereby
agree that it is their intent to narrow the scope of such
provision, including, without limitation, the forfeiture
provision, in order to enforce its intent to the broadest extent
permissible.
8. In case the Company is merged or consolidated with
another corporation, or in case of a reorganization, separation,
or liquidation of the Company, the Board or the board of
directors of any corporation assuming the obligations of the
Company under this Agreement shall either (i) make appropriate
provisions for the protection of the Option by the substitution
on an equitable basis of appropriate securities of the Company,
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<PAGE> 6
or appropriate securities of the merged, consolidated, or
otherwise reorganized corporation, or the appropriate adjustment
in the Option Price, or both, or (ii) give written notice to the
Optionee that the Option must be exercised, to the extent
exercisable after giving due effect to Section 3 above, within 60
days of the date of such notice or the Option will terminate.
9. The Optionee shall have no rights as a stockholder
with respect to the Shares until the date the Company has issued
and delivered the Shares to the Optionee, and the Optionee's name
shall have been entered as the stockholder of record on the books
of the Company and then only as to such Shares as are actually
issued and delivered to the Optionee.
10.1 The Shares issued upon exercise of the Option
shall be issued only to Optionee or a person permitted to
exercise the Option pursuant to Section 3. Each share
certificate representing Shares purchased upon exercise of the
Opt ion shall bear a legend stating that the Shares evidenced
thereby may not be sold or transferred except in compliance with
the Securities Act of 1933, as amended (the "1933 Act"). The
certificate(s) may be made subject to a stop transfer order
placed with the Company's transfer agent.
10.2 Notwithstanding any other provision of this
Agreement, unless the issuance of Shares upon exercise of the
Option shall then be covered by an effective registration
statement under the 1933 Act, the Company shall have no
obligation to issue any Shares pursuant to an exercise of the
Option in the absence of an opinion of counsel to the Company
that said sale may be effected pursuant to an exemption from the
registration requirements of the 1933 Act. If the Company's
Common Stock is not then publicly traded, the Company shall have
no obligation to file a registration statement or take other
steps to permit the Shares to be issued in compliance with the
1933 Act. It shall be a further condition to the Company's
obligation to issue and deliver to Optionee certificates for
those Shares, that Optionee deliver to the Company in writing a
representation that such Optionee is exercising such Option for
his own account for investment only and not with a view to
distribution and that the Optionee will not make any sale,
transfer or other disposition of any Shares purchased except (i)
pursuant to the registration thereof under the 1933 Act, (ii)
pursuant to an opinion of counsel, satisfactory in form and
substance to the Company, that the sale, transfer or other
disposition may be made without registration, or (iii) pursuant
to a "no action" letter from the Securities and Exchange
Commission. Optionee has been advised and understands the Shares
must be held indefinitely unless they are registered for resale
under the 1933 Act or an exception from registration is available
and that the Company is under no obligation to register those
Shares under the 1933 Act for resale or to take any action that
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<PAGE> 7
would make available to the holder any exemption from
registration.
11. The aggregate number of Shares purchasable under
the Option and the Option Price for the Shares shall all be
proportionately adjusted, as deemed appropriate by the Committee,
if the Company's shares of Common Stock are split-up, converted,
exchanged, reclassified, or in any way substituted for. The
Committee shall also provide for appropriate adjustments of the
number of shares purchasable under the Option in the event of
stock dividends or distributions of assets or securities of other
companies owned by the Company to stockholders relating to its
Common Stock for which the record date is prior to the date the
Shares purchased by exercise of the Option are issued, except
that no such adjustment shall be made for extraordinary cash
dividends of 10% or less of the fair market value of the Common
Stock (as established by the Board using any reasonable method of
valuation) or stock dividends of 10% or less. Any such
adjustment may include an adjustment of the Option Price or the
number of Shares for which the Option may be exercised, or may
provide for an escrow of assets or securities so distributed to
be available upon future exercise, or a combination thereof, as
the Committee deems appropriate. In the event of a change in the
Company's presently authorized Common Stock which is limited to a
change of all of its presently authorized shares of Common Stock
with par value into the same number of shares without par value,
or any change of the then authorized shares of Common Stock with
par value into the same number of shares with a different par
value, the shares resulting from any such change shall be deemed
to be Shares, and no change in the number of Shares covered by
the Option or in the Option Price shall take place.
12. If the Parent, the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state
or local tax rules or regulations in respect of the payment of
cash or the issuance of Shares pursuant to the exercise of the
Option, the Parent, the Company or such subsidiary shall be
entitled to deduct and withhold such amounts from any cash
payments to be made to the Optionee. In any event, the Optionee
shall (i) make available to the Parent, the Company or such
Subsidiary, promptly when requested by the Parent, the Company or
such Subsidiary, sufficient funds to meet the requirements of
such withholding, or, (ii) to the extent permitted by the
Committee, irrevocably authorize the Company to withhold from the
Shares otherwise issuable to the Optionee as a result of such
exercise a number of Shares having a Fair Market Value, as of the
date the withholding tax obligation arises (the "Tax Date") which
alone, or when added to funds paid to the Parent, the Company or
such Subsidiary by the Optionee equal the amount of the minimum
withholding tax obligation (the "withholding Election") and the
Parent, the Company or such Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to
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<PAGE> 8
have such funds made available to the Parent, the Company or such
Subsidiary out of any funds or property due or to become due to
the Optionee. The Committee or the Board may establish such
rules and procedures as they deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of the Option.
13. If at any time an Optionee is indebted to the
Company, the Company may in the discretion of the Committee (a)
withhold from the Optionee (i) following the exercise by an
Optionee of an Option, Shares issuable to the Optionee having a
fair market value (as determined by the Board using any
reasonable method of valuation) on the date of exercise up to the
amount of indebtedness to the Company or (ii) following the sale
by an Optionee of Shares received pursuant to the exercise of an
Option, amounts due to an Optionee in connection with the sale of
such Shares up to the amount of indebtedness to the Company, or
(b) take any substantially similar action.
14. Nothing in the Plan or this Option Certificate
shall confer (or be deemed to confer) upon the Optionee any right
to continue in the employ or continue to be retained by the
Parent, the Company or any Subsidiary or interfere in any way
with the right of the Parent, the Company or any Subsidiary to
terminate the Optionee's employment or retention at any time.
15. Each notice relating to the Option shall be in
writing and delivered in person or by certified mail to the
proper address. Each notice to the Company shall be addressed to
it at: MEDICAL MARKETING GROUP, INC., 100 Summit Avenue,
Montvale, New Jersey 07645, Attention: Vice President -
Treasurer. Each notice to Optionee shall be addressed to
Optionee at Optionee's address set forth below. Anyone to whom a
notice may be given under the Option may designate a new address
by notice to that effect. Each notice shall be deemed to have
been given on the day it was received. The Company may require
that any notice be on a specified form established by the Company.
16. All references to the masculine gender shall be
deemed to include the feminine gender, as the context may require.
17. This Agreement shall inure to the benefit of and be
binding upon each successor of the Company. Subject to Section
3, rights granted to the Company under this Agreement shall be
binding upon Optionee's personal representatives and heirs at law.
18. This Agreement shall be the sole end exclusive
source of any and all rights that Optionee and Optionee's
personal representatives or heirs at law, may have in respect of
the Option as granted hereunder. This Agreement is subject to
the terms of the Key Employee/Special Compensation Agreement
executed by Optionee.
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<PAGE> 9
19. The captions contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20. The Committee shall have the authority to interpret
and construe the provisions of this Agreement and such
interpretation or construction shall be final and conclusive
unless otherwise determined by the Board, and in any such event
the determination of the Board shall be final and conclusive.
The Committee may establish such rules and regulations concerning
this Agreement as the Committee may determine to be necessary or
advisable for the administration of this Agreement, including
without limiting the foregoing, rules and regulations concerning
non-competition provisions to be abided by the Optionee. The
Option shall be governed by the laws of the State of Delaware
applicable to agreements made and to be fully performed therein.
21. Should any part, term or condition hereof be
declared illegal, unenforceable or not in compliance with any
other law, the validity of the remaining portions or provisions
of this Agreement shall not be affected thereby, and the portions
or provisions declared illegal, unenforceable or not in
compliance with such law shall be and hereby are redrafted to
conform and be in compliance with applicable law, while leaving
the remaining portions of this Agreement intact.
WITNESS the signature of the Company's duly authorized
officer and the Optionee.
MEDICAL MARKETING GROUP, INC.
By: Douglas W. Wamsly
-----------------
Vice President
ACCEPTED AND AGREED TO:
By: Micki Mikula
----------------
Optionee
1520 Lexington Drive
----------------------
(Address)
Dresder, PA 19025
----------------------
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<PAGE> 1
EXHIBIT 4.8
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of
April 5, 1991, between MEDICAL MARKETING GROUP, INC., a Delaware
corporation with offices at 100 Summit Avenue, Montvale, New
Jersey 07645 (the "Company"), and MARIANNE VIGNONE ("Optionee").
AGREEMENTS
In consideration of the mutual covenants of this
Agreement, the Company and Optionee agree as follows:
1. Confirmation of Grant of Option. The Company
hereby confirms that Optionee has been granted on April 5, 1991
(the "Date of Grant"), subject to the terms of this Agreement,
the right (the "Option") to purchase 10,000 shares of the common
stock, $.01 par value, of the Company. All of the shares of the
Company's common stock are hereinafter referred to as the "Common
Stock," and the 10,000 shares of Common Stock that are subject to
purchase hereunder are hereinafter referred to as "Shares." Said
number of Shares subject to the Option may be adjusted as
provided in Section 11.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of this
Agreement, the Option shall become exercisable (i.e., "vested"):
2.1.1 with respect to 15% of the Shares, on
and after the first anniversary of the Date of Grant;
2.1.2 with respect to an additional 17.5% of
the Shares, on and after the second anniversary of the Date of
Grant;
2.1.3 with respect to an additional 20% of
the Shares, on and after the third anniversary of the Date of
Grant;
2.1.4 with respect to an additional 22.5% of
the Shares, on and after the fourth anniversary of the Date of
Grant; and
2.1.5 with respect to the remainder of the
Shares, on and after the fifth anniversary of the Date of Grant.
The foregoing vesting is on a cumulative basis. Notwithstanding
anything to the contrary contained herein, the Optionee agrees
<PAGE> 2
that (i) the Optionee shall not exercise the Option, and the
Option shall not be exercisable, until March 26, 1993, regardless
as to whether such Option terminates prior to such date, and (ii)
the Option shall terminate, without notice to the Optionee, and
become null and void if the Optionee is not employed by the
Company or any Affiliate of the Company at any time prior to
March 26, 1993. Notwithstanding the foregoing sentence, in the
event of a Change of Control (as defined below), the Stock Option
Committee of the Board of Directors of the Company (the
"Committee") may, in its sole discretion, determine that the
Option shall become exercisable in full or in part, whether or
not it is then exercisable; provided, however, that the Option
shall not become exercisable in full or in part because of a
Change of Control of Medco Containment Services, Inc. ("Medco"),
unless, immediately preceding such Change in Control, Medco was
in "control" of the Company within the meaning of the Exchange
Act. The Committee may also determine that the Option shall
become exercisable, in full or in part, whether or not it is then
exercisable, upon such circumstances or events as the Committee
determines, in its sole discretion, merits special
consideration. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred:
(i) when any "person," as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and as used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
exchange Act (but excluding any parent (the "Parent") of
the Company as defined under Section 424 of the Internal
Revenue Code of 1986, as amended (the "Code"), Medco and
the Company (and any successor to the Parent, Medco or the
Company which became a successor to the Parent, Medco or
the Company in a transaction which did not result in a
Change in Control), any subsidiary of the Company as
defined under Section 424 of the Code (a "Subsidiary") or
subsidiary of the Parent or Medco and any employee benefit
plan sponsored or maintained by the Parent or Medco or
their subsidiaries or the Company or any Subsidiary,
including any trustee of such plan acting as trustee)
directly or indirectly becomes the "beneficial owner, (as
defined in Rule 13d-3 under the Exchange Act, as amended
from time to time) of, or makes an offer to purchase,
securities of the Parent, Medco or the Company representing
50 percent or more of the combined voting power of its then
outstanding securities with respect to the election of
directors;
(ii) when, during any period of 24 consecutive months this
Agreement is in effect, the individuals who, at the
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<PAGE> 3
beginning of such period, constitute the Board of Directors
of the Parent or Medco or the Board of Directors of the
Company (the "Board"), as the case may be (the "Incumbent
Directors"), cease for any reason other than death to
constitute at least a majority thereof; provided, however,
that a director who was not a director at the beginning of
such 24-month period shall be deemed to have satisfied such
24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or
with the approval of, at least two-thirds of the directors
of the Parent, Medco or the Company, as the case may be,
who then qualified as Incumbent Directors either actually
(because they were directors at the beginning of such
24-month period) or by prior operation of this Section
3(ii);
(iii) when the shareholders of the Parent, Medco or the Company,
as the case may be, approve a merger or consolidation of
the Parent, Medco or the Company without the consent or
approval of a majority of its Incumbent Directors;
(iv) when there is a sale or disposition of all or substantially
all of the Parent's, Medco's or the Company's assets; or
(v) when the Company, the Parent or Medco adopts a plan of
liquidation.
3. The Option shall not be assignable or transferable
otherwise than by will or by the laws of descent and distribution
and the option may not be exercised other than by the Optionee
or, after the death of the Optionee, by his personal
representatives, heirs or legatees. Without limiting the
generality of the foregoing, the Option may not be assigned,
transferred (except as permitted in the preceding sentence),
pledged or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to levy, attachment or
similar process. Amy attempt to assign, transfer, pledge or
hypothecate the Option contrary to the provisions of this
Agreement, and any levy, attachment or similar process upon the
Option shall be null and void and without effect, and the Board
or the Committee may, in its sole discretion, upon the happening
of any such event, terminate the Option as of the date of such
event.
4. The Optionee (or the representative of his estate or
his heirs or legatees) may exercise the Option by giving written
notice of exercise to the Company at its principal business
office, specifying the number of Shares for which the Option is
exercised, accompanied by payment in full of the Option Price for
such Shares (together with any amount required for payroll
- 3 -
<PAGE> 4
withholding tax). If the Company has established a form for
notice of exercise, the Optionee shall use such form. The
Company shall cause certificates for the Shares so purchased to
be delivered to Optionee or Optionee's personal representatives,
heirs or legatees at its principal business office, following
receipt of the notice of exercise and payment in full of the
Option price and any required withholding taxes. Payment of the
Option price shall be made in United States dollars in the form
of cash, certified check or bank draft, or by delivery to the
Company of shares of Common Stock which the Optionee has owned
for at least six months, or if the Committee so determines, by
withholding Shares with respect to which the Optionee has
exercised the Option having a Fair Market Value on the date of
exercise equal to the sum of the Option Price for the withheld
Shares and the remaining Shares with respect to which the
Optionee has exercised the Option or any combination of such
methods of payment. Shares shall be valued at Fair Market Value
on the date of exercise.
5. The unexercised portion of the Option (both vested
and non-vested) shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of
the following:
5.1 The tenth anniversary of the Date of Grant;
5.2 Subject to the provisions of Section 5.3 and
5.4 below, 30 days following the date of termination of
Optionee's service as an employee; provided, however, that if
following such termination as an employee, Optionee is retained
by the Company as a consultant, the Board or the Committee, in
their sole discretion, may continue the Option for the balance of
the term with respect to all or any portion of the Shares covered
by it (in which case the Option shall not be deemed to have
terminated) or may permit the termination to stand. Any such
continuation shall not be deemed the grant of a new option.
5.3 If the Optionee retires as an employee of the
Company with the consent of the Company, the Option (both vested
and non-vested) shall expire on the date of retirement, except
for any portion thereof which war otherwise exercisable on the
date of retirement, which shall expire unless exercised within a
period of 90 days after the date of retirement.
5.4 If Optionee dies while an employee or
contractor of the Company or within the 30 day period following
the date of termination of Optionee's status as an employee or
consultant (described in Section 5.2) or the 90 day period
following retirement with the consent of the Company (described
in Section 5.3), any unexercised portion of the Option which was
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<PAGE> 5
otherwise exercisable on the date of death shall be exercisable
by the representative of the estate or the heirs or legatees of
the Optionee at any time within the one year period from date of
death.
5.5 If the Optionee's services with the Parent,
the Company or any Subsidiary are terminated because of the
Optionee's violation of his duties to the Parent, the Company or
any Subsidiary, including but not limited to, violation of
Optionee's obligations contained in any agreement with the
Parent, the Company or any subsidiary, or Optionee's violation of
any other obligation written or otherwise to the Medco, Company
or any Subsidiary, as he may from time to time have, the
existence of which violation shall be determined by the Committee
in its sole discretion (which determination shall be conclusive),
the Option shall terminate immediately as of the time of
termination of the Optionee's services and the Optionee shall
have no right after such termination to exercise any Option the
Optionee might have exercised prior to his termination of service.
5.6 In no event, however, shall the Option be
exercisable after the expiration of ten years from the Date of
Grant. Nothing in this Section 5 shall cause the Option to vest
other than in accordance with the provisions of Section 3.
6. Subject to adjustment as provided in Section 11, the
purchase price (the "Option Price") of the shares covered by this
Agreement shall be $19.625 per share.
7. The parties hereto acknowledge that any breach of
the Optionee of the non-competition covenant in any agreement
with the Parent, the Company or any Subsidiary, the Optionee
would cause irreparable damage to the Company. Accordingly,
notwithstanding anything to the contrary contained herein, any
breach or threatened breach by Optionee of the foregoing
non-competition class shall entitle the Company, in addition to
any other legal and equitable remedies available to it, to
declare forfeited any and all stock options granted by the
Company to the Optionee, whether or not such options have vested
or been exercised. The parties further agree that upon
forfeiture, the Company is entitled to recover, and Optionee will
disgorge to the Company, any profits or proceeds acquired from
the Option. The forfeiture provision shall survive the
termination of any such agreement and thereafter expire
concurrently with the expiration date set forth in the
non-competition covenant. The parties acknowledge that said
forfeiture and disgorgement shall constitute liquidated damages
for Optionee's breach of said non-competition covenant. The
parties hereto understand and intend that the foregoing
provisions shall be construed as separable and divisible, and the
- 5 -
<PAGE> 6
unenforceability of any restriction will not affect the
enforceability of the remaining restrictions and that one or more
or all of such restrictions may be enforced in whole or in part
as the circumstances warrant. Should any court find any
provision of such agreement unenforceable, the parties hereby
agree that it is their intent to narrow the scope of such
provision, including, without limitation, the forfeiture
provision, in order to enforce its intent to the broadest extent
permissible.
8. In case the Company is merged or consolidated with
another corporation, or in case of a reorganization, separation,
or liquidation of the Company, the Board or the board of
directors of any corporation assuming the obligations of the
Company under this Agreement shall either (i) make appropriate
provisions for the protection of the Option by the substitution
on an equitable basis of appropriate securities of the Company,
or appropriate securities of the merged, consolidated, or
otherwise reorganized corporation, or the appropriate adjustment
in the Option Price, or both, or (ii) give written notice to the
Optionee that the Option must be exercised, to the extent
exercisable after giving due effect to Section 3 above, within 60
days of the date of such notice or the Option will terminate.
9. The Optionee shall have no rights as a stockholder
with respect to the Shares until the date the Company has issued
and delivered the Shares to the Optionee, and the Optionee's name
shall have been entered as the stockholder of record on the books
of the Company and then only as to such Shares as are actually
issued and delivered to the Optionee.
10.1 The Shares issued upon exercise of the Option
shall be issued only to Optionee or a person permitted to
exercise the Option pursuant to Section 3. Each share
certificate representing Shares purchased upon exercise of the
Option shall bear a legend stating that the Shares evidenced
thereby may not be sold or transferred except in compliance with
the Securities Act of 1933, as amended (the "1933 Act"). The
certificate(s) may be made subject to a stop transfer order
placed with the Company's transfer agent.
10.2 Notwithstanding any other provision of this
Agreement, unless the issuance of Shares upon exercise of the
Option shall then be covered by an effective registration
statement under the 1933 Act, the Company shall have no
obligation to issue any Shares pursuant to an exercise of the
Option in the absence of an opinion of counsel to the Company
that said sale may be effected pursuant to an exemption from the
registration requirements of the 1933 Act. If the Company's
Common Stock is not then publicly traded, the Company shall have
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<PAGE> 7
no obligation to file a registration statement or take other
steps to permit the Shares to be issued in compliance with the
1933 Act. It shall be a further condition to the Company's
obligation to issue and deliver to Optionee certificates for
those Shares, that Optionee deliver to the Company in writing a
representation that such Optionee is exercising such Option for
his own account for investment only and not with a view to
distribution and that the Optionee will not make any sale,
transfer or other disposition of any Shares purchased except (i)
pursuant to the registration thereof under the 1933 Act, (ii)
pursuant to an opinion of counsel, satisfactory in form and
substance to the Company, that the sale, transfer or other
disposition may be made without registration, or (iii) pursuant
to a "no action" letter from the Securities and Exchange
Commission. Optionee has been advised and understands the Shares
must be held indefinitely unless they are registered for resale
under the 1933 Act or an exemption from registration is available
and that the Company is under no obligation to register those
Shares under the 1933 Act for resale or to take any action that
would make available to the holder any exemption from
registration.
11. The aggregate number of Shares purchasable under
the Option and the Option price for the Shares shall all be
proportionately adjusted, as deemed appropriate by the Committee,
if the Company's shares of Common Stock are split-up, converted,
exchanged, reclassified, or in any way substituted for. The
Committee shall also provide for appropriate adjustments of the
number of Shares purchasable under the Option in the event of
stock dividends or distributions of assets or securities of other
companies owned by the Company to stockholders relating to its
Common Stock for which the record date is prior to the date the
Shares purchased by exercise of the Option are issued, except
that no such adjustment shall be made for extraordinary cash
dividends of 10% or less of the fair market value of the Common
Stock (as established by the Board using any reasonable method of
valuation) or stock dividends of 10% or less. Any such
adjustment may include in adjustment of the Option price or the
number of Shares for which the Option may be exercised, or may
provide for an escrow of assets or securities so distributed to
be available upon future exercise, or a combination thereof, as
the Committee deems appropriate. In the event of a change in the
Company's presently authorized Common Stock which is limited to a
change of all of its presently authorized shares of Common Stock
with par value into the same number of shares without par value,
or any change of the then authorized shares of Common Stock with
par value into the same number of shares with a different par
value, the shares resulting from any such change shall be deemed
to be Shares, and no change in the number of Shares covered by
the Option or in the Option price shall take place.
- 7 -
<PAGE> 8
12. If the Parent, the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state
or local tax rules or regulations in respect of the payment of
cash or the issuance of Shares pursuant to the exercise of the
Option, the Parent, the Company or such Subsidiary shall be
entitled to deduct and withhold such amounts from any cash
payments to be made to the Optionee. In any event, the Optionee
shall (i) make available to the Parent, the Company or such
Subsidiary, promptly when requested by the Parent, the Company or
such Subsidiary, sufficient funds to meet the requirements of
such withholding, or, (ii) to the extent permitted by the
Committee, irrevocably authorize the Company to withhold from the
Shares otherwise issuable to the Optionee as a result of such
exercise a number of Shares having a Fair Market Value, as of the
date the withholding tax obligation arises (the "Tax Date") which
alone, or when added to funds paid to the parent, the Company or
such Subsidiary by the Optionee equal the amount of the minimum
withholding tax obligation (the "Withholding Election") and the
Parent, the Company or such Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to
have such funds made available to the Parent, the Company or such
Subsidiary out of any funds or property due or to become due to
the Optionee. The Committee or the Board may establish such
rules and procedures as they deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of the Option.
13. If at any time an Optionee is indebted to the
Company, the Company may in the discretion of the Committee (a)
withhold from the Optionee (i) following the exercise by an
Optionee of an Option, Shares issuable to the Optionee having a
fair market value (as determined by the Board using any
reasonable method of valuation) on the date of exercise up to the
amount of indebtedness to the Company or (ii) following the sale
by an Optionee of Shares received pursuant to the exercise of an
Option, amounts due to an Optionee in connection with the sale of
such Shares up to the amount of indebtedness to the Company, or
(b) take any substantially similar action.
14. Nothing in the Plan or this Option Certificate
shall confer (or be deemed to confer) upon the Optionee any right
to continue in the employ or continue to be retained by the
Parent, the Company or any Subsidiary or interfere in any way
with the right of the Parent, the Company or any Subsidiary to
terminate the Optionee's employment or retention at any time.
15. Each notice relating to the Option shall be in
writing and delivered in person or by certified mail to the
proper address. Each notice to the Company shall be addressed to
it at: MEDICAL MARKETING GROUP, INC., 100 Summit Avenue,
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<PAGE> 9
Montvale, New Jersey 07645, Attention: Vice President -
Treasurer. Each notice to Optionee shall be addressed to
Optionee at Optionee's address set forth below. Anyone to whom a
notice may be given under the Option may designate a new address
by notice to that effect. Each notice shall be deemed to have
been given on the day it was received. The Company may require
that any notice be on a specified form established by the Company.
16. All references to the masculine gender shall be
deemed to include the feminine gender, as the context may require.
17. This Agreement shall inure to the benefit of and be
binding upon each successor of the Company. Subject to Section
3, rights granted to the Company under this Agreement shall be
binding upon Optionee's personal representatives and heirs at law.
18. This Agreement shall be the sole and exclusive
source of any and all rights that Optionee, and Optionee's
personal representatives or heirs at law, may have in respect of
the Option as granted hereunder. This Agreement is subject to
the terms of the Key Employee/Special Compensation Agreement
executed by Optionee,
19. The captions contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20. The Committee shall have the authority to interpret
and construe the provisions of this Agreement and such
interpretation or construction shall be final and conclusive
unless otherwise determined by the Board, and in any such event
the determination of the Board shall be final and conclusive.
The Committee may establish such rules and regulations concerning
this Agreement as the Committee may determine to be necessary or
advisable for the administration of this Agreement, including
without limiting the foregoing, rules and regulations concerning
non-competition provisions to be abided by the Optionee. The
Option shall be governed by the laws of the State of Delaware
applicable to agreements made and to be fully performed therein.
21. Should any part, term or condition hereof be
declared illegal, unenforceable or not in compliance with any
other laws, the validity of the remaining portions or provisions
of this Agreement shall not be affected thereby, and the portions
or provisions declared illegal, unenforceable or not in
compliance with such law shall be and hereby are redrafted to
conform and be in compliance with applicable law, while leaving
the remaining portions of this Agreement intact.
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<PAGE> 10
WITNESS the signature of the Company's duly authorized
officer and the Optionee.
MEDICAL MARKETING GROUP, INC.
By: Douglas W. Wamsly
-----------------
Vice President - Legal
ACCEPTED AND AGREED TO:
By: Marianne Vignone
-----------------------
Optionee
100 Ernst Avenue
-----------------------
[Address]
Bloomfield, NJ 07003
-----------------------
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<PAGE> 1
EXHIBIT 4.9
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of
April 5, 1991, between MEDICAL MARKETING GROUP, INC., a Delaware
corporation with offices at 100 Summit Avenue, Montvale, New
Jersey 07645 (the "Company"), and PEGGY JABLONSKI ("Optionee").
AGREEMENTS
In consideration of the mutual covenants of this
Agreement, the Company and Optionee agree as follows:
1. Confirmation of Grant of Option. The Company
hereby confirms that Optionee has been granted on April 5, 1991
(the "Date of Grant"), subject to the terms of this Agreement,
the right (the "Option") to purchase 7,500 shares of the common
stock, $.01 par value, of the Company. All of the shares of the
Company's common stock are hereinafter referred to as the "Common
Stock," and the 7,500 shares of Common Stock that are subject to
purchase hereunder are hereinafter referred to as "Shares." Said
number of Shares subject to the Option may be adjusted as
provided in Section 11.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of this
Agreement, the Option shall become exercisable (i.e., "vested"):
2.1.1 with respect to 15% of the Shares, on
and after the first anniversary of the Date of Grant;
2.1.2 with respect to an additional 17.5% of
the Shares, on and after the second anniversary of the Date of
Grant;
2.1.3 with respect to an additional 20% of
the Shares, on and after the third anniversary of the Date of
Grant;
2.1.4 with respect to an additional 22.5% of
the Shares, on and after the fourth anniversary of the Date of
Grant; and
2.1.5 with respect to the remainder of the
Shares, on and after the fifth anniversary of the Date of Grant.
The foregoing vesting is on a cumulative basis. Notwithstanding
the foregoing sentence, in the event of a Change of Control (as
<PAGE> 2
defined below), the Stock Option Committee of the Board of
Directors of the Company (the "Committee") may, in its sole
discretion, determine that the Option shall become exercisable in
full or in part, whether or not it is then exercisable; provided,
however, that the Option shall not become exercisable in full or
in part because of a Change of Control of Medco Containment
Services, Inc. ("Medco"), unless, immediately preceding such
Change in Control, Medco was in "control" of the Company within
the meaning of the Exchange Act. The Committee may also
determine that the Option shall become exercisable, in full or in
part, whether or not it is then exercisable, upon such
circumstances or events as the Committee determines, in its sole
discretion, merits special consideration. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred:
(i) when any "person," as defined in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and as used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d) of the
exchange Act (but excluding any parent (the "Parent") of
the Company as defined under Section 424 of the Internal
Revenue Code of 1986, as amended (the "Code"), Medco and
the Company (and any successor to the Parent, Medco or the
Company which became a successor to the Parent, Medco or
the Company in a transaction which did not result in a
Change in Control), any subsidiary of the Company as
defined under Section 424 of the Code (a "Subsidiary") or
subsidiary of the Parent or Medco and any employee benefit
plan sponsored or maintained by the parent or Medco or
their subsidiaries or the Company or any Subsidiary,
including any trustee of such plan acting as trustee)
directly or indirectly becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act, as amended
from time to time) of, or makes an offer to purchase,
securities of the Parent, Medco or the Company representing
50 percent or more of the combined voting power of its then
outstanding securities with respect to the election of
directors;
(ii) when, during any period of 24 consecutive months this
Agreement is in effect, the individuals who, at the
beginning of such period, constitute the Board of Directors
of the parent or Medco or the Board of Directors of the
Company (the "Board"), as the case may be (the "Incumbent
Directors"), cease for any reason other than death to
constitute at least a majority thereof; provided, however,
that a director who was not a director at the beginning of
such 24-month period shall be deemed to have satisfied such
24-month requirement (and be an Incumbent Director) if such
director was elected by, or on the recommendation of or
with the approval of, at least two-thirds of the directors
of the Parent, Medco or the Company, as the case may be,
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<PAGE> 3
who then qualified as Incumbent Directors either actually
(because they were directors at the beginning of such
24-month period) or by prior operation of this Section
3(ii);
(iii) when the shareholders of the Parent, Medco or the Company,
as the case may be, approve a merger or consolidation of
the parent, Medco or the Company without the consent or
approval of a majority of its Incumbent Directors;
(iv) when there is a sale or disposition of all or substantially
all of the Parent's, Medco's or the Company's assets; or
(v) when the Company, the Parent or Medco adopts a plan of
liquidation.
3. The Option shall not be assignable or transferable
otherwise than by will or by the laws of descent and distribution
and the option may not be exercised other than by the Optionee
or, after the death of the Optionee, by his personal
representatives, heirs or legatees. Without limiting the
generality of the foregoing, the Option may not be assigned,
transferred (except as permitted in the preceding sentence),
pledged or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to levy, attachment or
similar process. Any attempt to assign, transfer, pledge or
hypothecate the Option contrary to the provisions of this
Agreement, and any levy, attachment or similar process upon the
Option shall be null and void and without effect, and the Board
or the Committee may, in its sole discretion, upon the happening
of any such event, terminate the Option as of the date of such
event.
4. The Optionee (or the representative of his estate or
his heirs or legatees) may exercise the Option by giving written
notice of exercise to the Company at its principal business
office, specifying the number of Shares for which the Option is
exercised, accompanied by payment in full of the Option Price for
such Shares (together with any amount required for payroll
withholding tax). If the Company has established a form for
notice of exercise, the Optionee shall use such form. The
Company shall cause certificates for the Shares so purchased to
be delivered to Optionee or Optionee's personal representatives,
heirs or legatees at its principal business office, following
receipt of the notice of exercise and payment in full of the
Option Price and any required withholding taxes. Payment of the
Option Price shall be made in United States dollars in the form
of cash, certified check or bank draft, or by delivery to the
Company of shares of Common Stock which the Optionee has owned
for at least six months, or if the Committee so determines, by
withholding Shares with respect to which the Optionee has
exercised the Option having a Fair Market Value on the date of
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<PAGE> 4
exercise equal to the sum of the Option price for the withheld
Shares and the remaining Shares with respect to which the
Optionee has exercised the Option or any combination of such
methods of payment. Shares shall be valued at Fair Market Value
on the date of exercise.
5. The unexercised portion of the Option (both vested
and non-vested) shall automatically and without notice terminate
and become null and void at the time of the earliest to occur of
the following:
5.1 The tenth anniversary of the Date of Grant;
5.2 Subject to the provisions of Section 5.3 and
5.4 below, 30 days following the date of termination of
Optionee's service as an employee; provided, however, that if
following such termination as an employee, Optionee is retained
by the Company as a consultant, the Board or the Committee, in
their sole discretion, may continue the Option for the balance of
the term with respect to all or any portion of the Shares covered
by it (in which case the Option shall not be deemed to have
terminated) or may permit the termination to stand. Any such
continuation shall not be deemed the grant of a new option.
5.3 If the Optionee retires as an employee of the
Company with the consent of the Company, the Option (both vested
and non-vested) shall expire on the date of retirement, except
for any portion thereof which was otherwise exercisable on the
date of retirement, which shall expire unless exercised within a
period of 90 days after the date of retirement.
5.4 If Optionee dies while an employee or
contractor of the Company or within the 30 day period following
the date of termination of Optionee's status as an employee or
consultant (described in Section 5.2) or the 90 day period
following retirement with the consent of the Company (described
in Section 5.3), any unexercised portion of the Option which was
otherwise exercisable on the date of death shall be exercisable
by the representative of the estate or the heirs or legatees of
the Optionee at any time within the one year period from date of
death.
5.5 If the Optionee's services with the Parent,
the Company or any Subsidiary are terminated because of the
Optionee's violation of his duties to the parent, the Company or
any Subsidiary, including but not limited to, violation of
Optionee's obligations contained in any agreement with the
Parent, the Company or any subsidiary, or Optionee's violation of
any other obligation written or otherwise to the Medco, Company
or any Subsidiary, as he may from time to time have, the
existence of which violation shall be determined by the Committee
in its sole discretion (which determination shall be conclusive),
- 4 -
<PAGE> 5
the Option shall terminate immediately as of the time of
termination of the Optionee's services and the Optionee shall
have no right after such termination to exercise any Option the
Optionee might have exercised prior to his termination of service.
5.6 In no event, however, shall the Option be
exercisable after the expiration of ten years from the Date of
Grant. Nothing in this Section 5 shall cause the Option to vest
other than in accordance with the provisions of Section 3.
6. Subject to adjustment as provided in Section 11, the
purchase price (the "Option Price") of the shares covered by this
Agreement shall be $19.625 per share.
7. The parties hereto acknowledge that any breach of
the Optionee of the non-competition covenant in any agreement
with the Parent, the Company or any Subsidiary, the Optionee
would cause irreparable damage to the Company. Accordingly,
notwithstanding anything to the contrary contained herein, any
breach or threatened breach by Optionee of the foregoing
non-competition clause shall entitle the Company, in addition to
any other legal and equitable remedies available to it, to
declare forfeited any and all stock options granted by the
Company to the Optionee, whether or not such options have vested
or been exercised. The parties further agree that upon
forfeiture, the Company is entitled to recover, and Optionee will
disgorge to the Company, any profits or proceeds acquired from
the Option. The forfeiture provision shall survive the
termination of any such agreement and thereafter expire
concurrently with the expiration date set forth in the
non-competition covenant. The parties acknowledge that said
forfeiture and disgorgement shall constitute liquidated damages
for Optionee's breach of said non-competition covenant. The
parties hereto understand and intend that the foregoing
provisions shall be construed as separable and divisible, and the
unenforceability of any restriction will not affect the
enforceability of the remaining restrictions and that one or more
or all of such restrictions may be enforced in whole or in part
as the circumstances warrant. Should any court find any
provision of such agreement unenforceable, the parties hereby
agree that it is their intent to narrow the scope of such
provision, including, without limitation, the forfeiture
provision, in order to enforce its intent to the broadest extent
permissible.
8. In case the Company is merged or consolidated with
another corporation, or in case of a reorganization, separation,
or liquidation of the Company, the Board or the board of
directors of any corporation assuming the obligations of the
Company under this Agreement shall either (i) make appropriate
provisions for the protection of the Option by the substitution
on an equitable basis of appropriate securities of the Company,
- 5 -
<PAGE> 6
or appropriate securities of the merged, consolidated, or
otherwise reorganized corporation, or the appropriate adjustment
in the Option price, or both, or (ii) give written notice to the
Optionee that the Option must be exercised, to the extent
exercisable after giving due effect to Section 3 above, within 60
days of the date of such notice or the Option will terminate.
9. The Optionee shall have no rights as a stockholder
with respect to the Shares until the date the Company has issued
and delivered the Shares to the Optionee, and the Optionee's name
shall have been entered as the stockholder of record on the books
of the Company and then only as to such Shares as are actually
issued and delivered to the Optionee.
10.1 The Shares issued upon exercise of the Option
shall be issued only to Optionee or a person permitted to
exercise the Option pursuant to Section 3. Each share
certificate representing Shares purchased upon exercise of the
Option shall bear a legend stating that the Shares evidenced
thereby may not be sold or transferred except in compliance with
the Securities Act of 1933, as amended (the "1933 Act"). The
certificate(s) may be made subject to a stop transfer order
placed with the Company's transfer agent.
10.2 Notwithstanding any other provision of this
Agreement, unless the issuance of Shares upon exercise of the
Option shall then be covered by in effective registration
statement under the 1933 Act, the Company shall have no
obligation to issue any Shares pursuant to an exercise of the
Option in the absence of an opinion of counsel to the Company
that said sale may be effected pursuant to an exemption from the
registration requirements of the 1933 Act. If the Company's
Common Stock is not then publicly traded, the Company shall have
no obligation to file a registration statement or take other
steps to permit the Shares to be issued in compliance with the
1933 Act. It shall be a further condition to the Company's
obligation to issue and deliver to Optionee certificates for
those Shares, that Optionee deliver to the Company in writing a
representation that such Optionee is exercising such Option for
his own account for investment only and not with a view to
distribution and that the Optionee will not make any sale,
transfer or other disposition of any Shares purchased except (i)
pursuant to the registration thereof under the 1933 Act, (ii)
pursuant to am opinion of counsel, satisfactory in form and
substance to the Company, that the sale, transfer or other
disposition may be made without registration, or (iii) pursuant
to a "no action" letter from the Securities and Exchange
Commission. Optionee has been advised and understands the Shares
must be held indefinitely unless they are registered for resale
under the 1933 Act or an exemption from registration is available
and that the Company is under no obligation to register those
Shares under the 1935 Act for resale or to take any action that
- 6 -
<PAGE> 7
would make available to the holder any exception from
registration.
11. The aggregate number of Shares purchasable under
the Option and the Option Price for the Shares shall all be
proportionately adjusted, as deemed appropriate by the Committee,
if the Company's shares of Common Stock are split-up, converted,
exchanged, reclassified, or in any way substituted for. The
Committee shall also provide for appropriate adjustments of the
number of Shares purchasable under the Option in the event of
stock dividends or distributions of assets or securities of other
companies owned by the Company to stockholders relating to its
Common Stock for which the record date is prior to the date the
Shares purchased by exercise of the Option are issued, except
that no such adjustment shall be made for extraordinary cash
dividends of 10% or less of the fair market value of the Common
Stock (as established by the Board using any reasonable method of
valuation) or stock dividends of 10% or less. Any such
adjustment may include an adjustment of the Option Price or the
number of Shares for which the Option may be exercised, or may
provide for an escrow of assets or securities so distributed to
be available upon future exercise, or a combination thereof, as
the Committee deems appropriate. In the event of a change in the
Company's presently authorized Common Stock which is limited to a
change of all of its presently authorized shares of Common Stock
with par value into the same number of shares without par value,
or any change of the then authorized shares of Common Stock with
par value into the same number of shares with a different par
value, the shares resulting from any such change shall be deemed
to be Shares, and no change in the number of Shares covered by
the Option or in the Option Price shall take place.
12. If the parent, the Company or a Subsidiary shall be
required to withhold any amounts by reason of any federal, state
or local tax rules or regulations in respect of the payment of
cash or the issuance of Shares pursuant to the exercise of the
Option, the parent, the Company or such subsidiary shall be
entitled to deduct and withhold such amounts from any cash
payments to be made to the Optionee. In any event, the Optionee
shall (i) make available to the Parent, the Company or such
Subsidiary, promptly when requested by the parent, the Company or
such Subsidiary, sufficient funds to meet the requirements of
such withholding, or, (ii) to the extent permitted by the
Committee irrevocably authorize the Company to withhold from the
Shares otherwise issuable to the Optionee as a result of such
exercise a number of Shares having a Fair Market Value, as of the
date the withholding tax obligation arises (the "Tax Date") which
alone, or when added to fund a paid to the parent, the Company or
such Subsidiary by the Optionee equal the amount of the minimum
withholding tax obligation (the "Withholding Election") and the
parent, the Company or such Subsidiary shall be entitled to take
and authorize such steps as it may deem advisable in order to
- 7 -
<PAGE> 8
have such funds made available to the Parent, the Company or such
Subsidiary out of any funds or property due or to become due to
the Optionee. The Committee or the Board may establish such
rules and procedures as they deem necessary or advisable in
connection with the withholding of taxes relating to the exercise
of the Option.
13. If at any time an Optionee is indebted to the
Company, the Company may in the discretion of the Committee (a)
withhold from the Optionee (i) following the exercise by an
Optionee of an Option, Shares issuable to the Optionee having a
fair market value (as determined by the Board using any
reasonable method of valuation) on the date of exercise up to the
amount of indebtedness to the Company or (ii) following the sale
by an Optionee of Shares received pursuant to the exercise of an
Option, amounts due to an Optionee in connection with the sale of
such Shares up to the amount of indebtedness to the Company, or
(b) take any substantially similar action.
14. Nothing in the Plan or this Option Certificate
shall confer (or be deemed to confer) upon the Optionee any right
to continue in tho employ or continue to be retained by the
parent, the Company or any Subsidiary or interfere in any way
with the right of the Parent, the Company or any Subsidiary to
terminate the Optionee's employment or retention at any time.
15. Each notice relating to the Option shall be in
writing and delivered in person or by certified mail to the
proper address. Each notice to the Company shall be addressed to
it at: MEDICAL MARKETING GROUP, INC., 100 Summit Avenue,
Montvale, New Jersey 07645, Attention. Vice President -
Treasurer. Each notice to Optionee shall be addressed to
Optionee at Optionee's address set forth below. Anyone to whom a
notice may be given under the Option may designate a new address
by notice to that effect. Each notice shall be deemed to have
been given on the day it was received. The Company may require
that any notice be on a specified form established by the Company.
16. All references to the masculine gender shall be
deemed to include the feminine gender, is the context may require.
17. This Agreement shall inure to the benefit of and be
binding upon each successor of the Company. Subject to Section
3, rights granted to the Company under this Agreement shall be
binding upon Optionee's personal representatives and heirs at law.
18. This Agreement shall be the sole and exclusive
source of any and all rights that Optionee, and Optionee's
personal representatives or heirs at law, may have in respect of
the Option as granted hereunder. This Agreement is subject to
the terms of the Key Employee/Special Compensation Agreement
executed by Optionee.
- 8 -
<PAGE> 9
19. The captions contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20. The Committee shall have the authority to interpret
and construe the provisions of this Agreement and such
interpretation or construction shall be final and conclusive
unless otherwise determined by the Board, and in any such event
the determination of the Board shall be final and conclusive.
The Committee may establish such rules and regulations concerning
this Agreement as the Committee may determine to be necessary or
advisable for the administration of this Agreement, including
without limiting the foregoing, rules and regulations concerning
non-competition provisions to be abided by the Optionee. The
Option shall be governed by the laws of the State of Delaware
applicable to agreements made and to be fully performed therein.
21. Should any part, term or condition hereof be
declared illegal, unenforceable or not in compliance with any
other law, the validity of the remaining portions or provisions
of this Agreement shall not be affected thereby, and the portions
or provisions declared illegal, unenforceable or not in
compliance with such law shall be and hereby are redrafted to
conform and be in compliance with applicable law, while leaving
the remaining portions of this Agreement intact.
WITNESS the signature of the Company's duly authorized
officer and the Optionee.
MEDICAL MARKETING GROUP, INC.
By: Douglas W. Wamsly
-----------------
Vice President
ACCEPTED AND AGREED TO:
By: Margaret P. Jablonski
-----------------------
Optionee
219 S. Central Ave.
-----------------------
[Address]
Ramsey, NJ 07446
-----------------------
- 9 -
<PAGE> 1
EXHIBIT 4.10
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of
April 22, 1991, between MEDICAL MARKETING GROUP, INC., a Delaware
corporation with offices at 100 Summit Avenue, Montvale, New
Jersey 07645 (the "Company"), and ROGER C. HOLSTEIN ("Optionee").
RECITAL
The Optionee was granted an option to purchase 30,000
shares of the Company's Common Stock on April 22, 1991, as an in-
ducement to enter into the Optionee's Employment Agreement with
Medco Containment Services, Inc. ("Medco"), dated as of July 29,
1991 (the "Employment Agreement"), pursuant to which Optionee
will render services to Medco and its affiliates, including the
Company. All terms used herein shall have the same meanings as
in the Employment Agreement, unless otherwise defined.
AGREEMENTS
In consideration of the Recital (which is incorporated
by reference) and the mutual covenants of this Agreement, the
Company and Optionee agree as follows:
1. Confirmation of Grant of Option. The Company
hereby confirms that Optionee has been granted, subject to the
terms of this Agreement and the Employment Agreement, the right
(the "Option") to purchase 30,000 shares of the common stock,
$.01 par value, of the Company. All of the shares of the
Company's common stock are hereinafter referred to as the "Common
Stock," and the 30,000 shares of Common Stock that are subject to
purchase hereunder are hereinafter referred to as "Shares". Said
number of Shares subject to the Option may be adjusted as
provided in Section 10.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of
Agreement, the Option shall become exercisable (i.e., "vested"):
2.1.1 with respect to 15% of the Shares, on
and after the first anniversary of the commencement of the
Employment Period under the Employment Agreement ("Employment
Commencement Date");
2.1.2 with respect to an additional 17.5% of
the Shares, on and after the second anniversary of the Employment
Commencement Date;
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<PAGE> 2
2.1.3 With respect to an additional 20% of
the Shares, on and after the third anniversary of the Employment
Commencement Date;
2.1.4 with respect to an additional 22.5% of
the Shares, on and after the fourth anniversary of the Employment
Commencement Date; and
2.1.5 with respect to the remainder of the
Shares, on and after the fifth anniversary of the Employment
Commencement Date.
2.2 The unexercised portion of the Option
vested and non-vested) shall automatically and without notice
terminate and become null and void upon the earlier of the follow-
ing:
2.2.1 The tenth anniversary of the date of
this Agreement;
2.2.2 Subject to the provisions of Sections
2.3 and 2.4 below, 30 days following the date of termination of
Optionee's status as an officer of Medco.
2.3 If Optionee dies while an officer of Medco or
within the 30 day period following the date of termination of Op-
tionee's status as an officer (described in Section 2.2.2). any
unexercised portion of the Option that was otherwise exercisable
on the date of Optionee's death shall be exercisable by Option-
ee's personal representatives or heirs at law, if no personal rep-
resentative is required by the governing state law, at any time
within the one year period from date of Optionee's death.
2.4 Notwithstanding anything to the contrary con-
tained herein, in no event shall the Option be exercisable after
the expiration of ten years from the date of this Agreement.
3. Method of Exercise of Option. The Option may be ex-
ercised by Optionee (or by Optionee's personal representatives of
heirs at law, as provided in Section 2, but by no other person)
as to all or (at Optionee's election) part of the Shares as to
which the Option is then exercisable (that is, vested) under Sec-
tion 2 by giving written notice of exercise to the Company at its
principal business office, specifying the number of Shares for
which the Option is exercised, accompanied by payment in full for
such Shares (as determined pursuant to Section 4) together with
any amount required for payroll withholding tax under all applica-
ble federal, state or local laws or regulations. The failure to
exercise the Option, in whole or in part, as to any vested exer-
cise rights shall not constitute a waiver of these rights. The
Company shall cause certifies for the Shares so purchased to
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<PAGE> 3
be delivered to Optionee or Optionee's personal representatives
or heirs at law, at its principal business office, against pay-
ment in full of the Option price for such Shares (as determined
pursuant to Section 4) and any amount required for payroll with-
holding tax under all applicable federal, state or local laws or
regulations, as soon as practicable following receipt of the not-
ice of exercise. The Option Price and the required payroll with-
holding taxes shall be paid in cash, certified check or bank
draft.
4. Option Price. Subject to adjustment as provided in
Section 10, the purchase price of the Shares covered by this
Agreement shall be $21.75 per share.
5. Non-Transferability of Option. The Option shall
not be transferable otherwise than by will or by the laws of de-
scent and distribution. Without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as
permitted in the preceding sentence), pledged or hypothecated in
any way (whether by operation of law or otherwise), and shall not
be subject to levy, attachment or similar process. Any attempt
to assign, transfer, pledge or hypothecate the Option contrary to
the provisions of this Agreement, and any levy, attachment or sim-
ilar process upon the Option shall be null and void and without
effect, and the Company's Board of Directors or the Stock Option
Committee thereof may, in its sole discretion, upon the happening
of any such event, terminate the Option as of the date of such
event.
6. No Rights Prior to Issuance of Shares. The holder
of the Option shall not have any rights to dividends nor any
other rights of a shareholder as to the Shares covered by the Op-
tion until the Shares have been issued (as evidenced by the appro-
priate entry on the books of the transfer agent of the Company)
following exercise of the Option prior to its termination.
7. Violation of Section 9 of the Employment Agreement.
The parties hereto acknowledge that any breach by the Optionee of
any of the provisions of Section 9 of the Employment Agreement
would cause grave and irreparable damage to the Company. Accord-
ingly, notwithstanding anything to the contrary contained herein,
any breach by the Optionee at any time of any one or more of
provisions of Section 9 of the Employment Agreement shall have
the consequences set forth in Section 4.4.4 of the Employment
Agreement. The parties do not intend this Section 7 to be the ex-
clusive remedy for a breach by Optionee of the provisions of such
Section 9, and acknowledge that the remedies provided in this Sec-
tion 7 are in addition to all other remedies provided under the
Employment Agreement and applicable law. The provisions of this
Section 7 shall survive the termination of the Employment Agree-
ment.
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<PAGE> 4
8. Restrictions on Exercise and on Common Stock.
8.1 The Shares issued upon exercise of the Option
shall be issued only to Optionee or a person permitted to exer-
cise the Option pursuant to Section 2.3. Each share certificate
representing Shares purchased upon exercise of the Option shall
bear a legend stating that the Shares evidenced thereby may not
be sold or transferred except in compliance with the Securities
Act of 1933, as amended (the "1933 Act"), and the provisions of
the Employment Agreement. The certificate(s) may be made subject
to a stop transfer order placed with the Company's transfer agent.
8.2 Notwithstanding any other provision of this
Agreement, unless the issuance of Shares upon exercise of the Op-
tion shall then be covered by an effective registration statement
under the 1933 Act (which the Company presently intends to file),
the Company shall have no obligation to issue any Shares pursuant
to an exercise of the Option in the absence of an opinion of coun-
sel to the Company that said sale may be effected pursuant to an
exemption from the registration requirements of the 1933 Act. If
the Company's Common Stock is not then publicly traded, the Com-
pany shall have no obligation to file a registration statement or
take other steps to permit the Shares to be issued in compliance
with the 1933 Act. It shall be s further condition to the Com-
pany's obligation to issue and deliver to Optionee certificates
for those Shares, that Optionee deliver to the Company in writing
a representation that such Optionee is exercising such Option for
his own account for investment only and not with a view to distri-
bution and that the Optionee will not make any sale, transfer or
other disposition of any Shares purchased except (i) pursuant to
the registration thereof under the 1933 Act, (ii) pursuant to an
opinion of counsel, satisfactory in form and substance to the Com-
pany, that the sale, transfer or other disposition may be made
without registration, or (iii) pursuant to a "no action" letter
from the Securities and Exchange Commission. Optionee has been
advised and understands the Shares must be held indefinitely un-
less they are registered for resale under the 1933 Act or an ex-
emption from registration is available and that the Company is
under no obligation to register those Shares under the 1933 Act
for resale or to take any action that would make available to the
holder any exemption from registration.
9. Right to Terminate Employment. This Agreement does
not constitute a contract of, or an implied promise to continue,
Optionee's employment or status with Medco or any subsidiary of
Medco; and nothing contained in this Agreement shall confer upon
Optionee the right to continue such employment or status; nor
does this Agreement affect the right of Medco or any subsidiary
of Medco to terminate Optionee's employment at any time. Option-
ee shall have no rights in the benefits conferred by the Option
or in any Shares except to the extent the Option is exercised
-4-
<PAGE> 5
while vested and prior to termination. Termination of the Option
by reason of cessation of employment shall not give rise to any
claim for damages or other relief by Optionee under this Agree-
ment and shall be without prejudice to any rights or remedies
that Medco or any subsidiary of Medco may have against Optionee.
10. Adjustment.
10.1 The number and Option Price of Shares covered
by the Option, and any other rights under the Option, shall be
adjusted, as deemed appropriate by the Company's Board of Direct-
ors or the Stock Option Committee, as the case may be (whose good
faith determination shall be absolute and binding upon the Option-
ee), to reflect any subdivision (stock split) or consolidation
(reverse split) of the issued Common Stock of the Company, or any
other recapitalization of the Company, or any business combina-
tion or other transaction involving the Company that shall sub-
stantially affect the rights of holders of Common Stock. The
Stock Option Committee or the Board of Directors, as the case may
be, shall provide for appropriate adjustment of the Option in the
event of stock dividends or distributions of assets or securities
of other companies owned by the Company to stockholders relating
to Common Stock for which the record date is prior to the date
the Shares purchased by exercise of the Option are issued or
transferred, except that no such adjustment shall be made for
cash dividends or stock dividends of 10% or less (cumulatively,
in the aggregate).
10.2 In the event of a change in the presently auth-
orized Common Stock of the Company that is limited to a change of
all of its presently authorized shares of Common Stock with par
value into the same number of shares without par value, or any
change of all of the then authorized shares of Common Stock with
par value into the same number of shares with a different par
value, the shares resulting from any such change shall be deemed
to be Shares as defined in Section 1, and no change in the number
of shares covered by the Option or in the Option Price shall take
place.
11. Notices. Each notice relating to this Agreement
shall be in writing and delivered in person or by certified mail
to the proper address. Each notice to the Company shall be ad-
dressed to it at its principal office, attention of the Vice Pres-
ident - Treasurer, with a copy to the Executive Vice President
General Counsel. Each notice to Optionee (or other person or per-
sons then entitled to exercise the Option) shall be addressed
Optionee (or such other person or persons) at Optionee's most re-
cent address on the books of the Company. Anyone to whom a not-
ice may be given under this Agreement may designate a new address
by notice to that effect. Each notice shall be deemed to have
been given on the day it is received.
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<PAGE> 6
12. Benefits of Agreement. This Agreement shall inure
to the benefit of and be binding upon each successor of the Com-
pany. Subject to Section 2.3, rights granted to the Company
under this Agreement shall be binding upon Optionee's personal
representatives and heirs at law.
13. Source of Rights. This Agreement and the Employ-
ment Agreement shall be the sole and exclusive source of any and
all rights that Optionee, and Optionee's personal representatives
or heirs at law, may have in respect of the Option as granted
hereunder. In the event of any conflict between the provisions
of the Employment Agreement and of this Agreement, the provisions
of the Employment Agreement shall prevail.
14. Captions. The captions contained in this Agreement
are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
15. Interpretation and Construction. The good faith
interpretation and construction by the Board of Directors or by
the Stock Option Committee of any provision of this Agreement
shall be final and conclusive and binding on the parties hereto.
16. Governing Law. This Agreement shall be construed
in accordance with and governed in all respects by the laws of
the State of New Jersey without regard to any principles of con-
flict of laws.
EXECUTION
The parties signed this Agreement as of the day and year
first above written, whereupon it became binding in accordance
with its terms.
MEDICAL MARKETING GROUP, INC.
By: James V. Manning
------------------------
James V. Manning
Executive Vice President -
Finance and Administration
Roger C. Holstein
-----------------
ROGER C. HOLSTEIN
- 6 -
<PAGE> 1
EXHIBIT 4.11
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of
May 1, 1992, between MEDICAL MARKETING GROUP, INC. a Delaware
corporation with offices at 100 Summit Avenue, Montvale, New
Jersey (the "Company"), and CARL KANTER ("Optionee").
RECITAL
The Optionee was granted an option to purchase shares of
the Company's Common Stock as of December 11, 1991, as an
inducement to enter into the Optionee's employment Agreement with
Medco Containment Services, Inc. ("Medco") the parent of the
Company, dated as of May 1, 1992 (the "Employment Agreement")
pursuant to which the Optionee will render services to Medco and
its subsidiaries including the Company. As a result, the Company
has elected to issue to the Optionee an option to acquire 30,000
shares of its Common Stock. All terms used herein shall have the
same meanings as in the Employment Agreement, unless otherwise
defined.
AGREEMENTS
In consideration of the Recital (which is incorporated
by reference) and the mutual covenants of this Agreement, the
Company and Optionee agree as follows:
1. Confirmation of Grant of Option. The Company
hereby confirms that Optionee has been granted, subject to the
terms of this Agreement and the Employment Agreement, the right
(the "Option") to purchase 30,000 shares of Common Stock, $.01
par value, of the Company. All of the shares of the Company's
Common Stock are hereinafter referred to as the "Common Stock,"
and the 30,000 shares of Common Stock which are subject to
purchase hereunder are hereinafter referred to as "Shares". Said
number of Shares subject to the Option may be adjusted as
provided in Section 10.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of this
Agreement (including Sections 2.3, 2.4 and 2.5), the Option shall
become exercisable (i.e., "vested"):
2.1.1 with respect to 20% of the Shares, on
and after the first anniversary of the commencement of the
Employment Period under the employment Agreement ("Employment
Commencement Date");
<PAGE> 2
2.1.2 with respect to an additional 20% of
the Shares, on and after the second anniversary of the Employment
Commencement Data;
2.1.3 with respect to an additional 20% of
the Shares, on and after the third anniversary of the Employment
Commencement Date;
2.1.4 with respect to an additional 20% of
the Shares, on and after the fourth anniversary of the Employment
Commencement Date; and
2.1.5 with respect to the remainder of the
Shares, on and after the second business day before the fifth
anniversary of the Employment Commencement Date.
2.2 The unexercised portion of the Option (both
vested and non-vested) shall automatically and without notice
terminate and become null and void at the time of the earliest to
occur of the following:
2.2.1 The tenth anniversary of the date of
this Agreement;
2.2.2 Subject to the provisions of Sections
2.3, 2.4 and 2.5 below, 30 days following the date of termination
of Optionee's status as an employee of Medco (during which period
vesting shall continue).
2.3 If Optionee dies while employed by Medco or
within the 30 day period following the date of termination of
Optionee's employment (described in Section 2.2.2), any
unexercised portion of the Option which was otherwise exercisable
on the date of death shall be exercisable by Optionee's personal
representatives or heirs at law, if no personal representative in
required by the governing state law, at any time within the one
year period from date of death. Notwithstanding anything to the
contrary contained herein, if (a) Optionee dies during the
Employment Period or (b) the Optionee's employment with Medco is
terminated pursuant to Section 4.7 of the Employment Agreement by
reason of subclause (ii) thereof or by reason of subclause (i)
thereof and the Executive has submitted within 60 days of such
termination by reason of subclause (i) to an examination by a
duly licensed physician selected by Medco and such physician has
determined that the Executive has a Permanent Disability, then,
in each such case, 80% of the Shares (inclusive of such number of
Shares as to which the Option theretofore became vested) subject
to the Option shall automatically and immediately become
exercisable and vested on the date of death or the date of
termination pursuant to Section 4.7 by reason of subclause (ii)
or the determination by such physician that the Executive has a
Permanent Disability, as the case may be.
- 2 -
<PAGE> 3
2.4 Notwithstanding anything to the contrary
contained herein, if a Change of Control (as defined below) has
occurred during the Employment Period and following such Change
of Control Optionee's employment with Medco is terminated
"without cause", 100% of the then unvested Shares subject to the
Option shall automatically and immediately become exercisable and
vested on the effective data of Optionee's termination of
employment and any unexercised Shares shall remain exercisable
only for the time period specified in Section 2.2.
For purposes of this Agreement, "Change of Control"
shall mean (1) a merger of Medco into another entity (other than
an entity controlled or jointly controlled by Medco), or (2) a
merger of another entity (other than an entity controlled or
jointly controlled by Medco), into Medco, or (3) a sale of all or
substantially all of the assets of Medco to another entity (other
than an entity controlled or jointly controlled by Medco), or (4)
an entity, that is not controlled or jointly controlled by Medco,
becomes the beneficial owner of more than fifty percent of the
outstanding common stock of Medco, or (5) a successful
solicitation of shareholder proxies occurs, the purpose of which
is to remove from the Board of Directors those directors which
have been proposed by the incumbent management of Medco; provided
that after each such occurrence there results a change in the
composition of the Board of Directors of Medco (or the surviving
entity, as the case may be) such that the individuals who were
the directors of Medco prior to such occurrence do not constitute
at least fifty percent of the Board of Directors of Medco (or the
surviving entity, as the case may be) immediately after such
occurrence; and provided, further, that after any such
occurrence, Martin J. Wygod is not a member of senior management
of Medco (or the surviving entity, as the case may be).
2.5 In the event that (i) Optionee's employment
with Medco is terminated "without cause" or (ii) the Optionee's
bona fide termination of his employment with Medco pursuant to
Section 7.2 of the Employment Agreement (other than a termination
pursuant to Section 7.3 after a Change of Control, which shall be
governed by Section 2.4), the Shares subject to the Option will
continue to vest, in accordance with the schedule set forth in
Section 2.1, until the later to occur of (a) one year from the
date of termination of Optionee's employment or (b) the second
anniversary of the Employment Commencement Date. In each case,
the unexercised portion of the Option shall automatically and
without notice terminate and become null and void 30 days
following the final vesting of Shares pursuant to this Section
2.5.
- 3 -
<PAGE> 4
2.6 Notwithstanding anything to the contrary
contained herein, in no event shall the Option be exercisable
after the expiration of tan years from the date of this Agreement.
3. Method of Exercise of Option. The Option may be
exercised by Optionee (or by Optionee's personal representatives
or heirs at law, as provided in Section 2, but by no other
person) as to all or (at Optionee's election) part of the Shares
as to which the Option is then exercisable (that is, vested)
under Section 2 by giving written notice of exercise to the
Company at its principal business office, specifying the number
of Shares for which the Option is exercised, accompanied by
payment in full for such Shares (as determined pursuant to
Section 4) together with any amount required for payroll
withholding tax under all applicable Federal, State or local laws
or regulations or payment may be made by the Optionee by any
other method or at any other time at which the policies of the
Company's Stock Option Committee permit as to other options. The
failure to exercise the Option, in whole or in part, as to any
vested exercise rights shall not constitute a waiver of these
rights. The Company shall cause certificates for the Shares so
purchased to be delivered to Optionee or Optionee's personal
representatives or heirs at law, at its principal business
office, against payment in full of the Option price for such
Shares (as determined pursuant to Section 4), as soon as
practicable following receipt of the notice of exercise and the
applicable purchase price. The purchase price shall be paid in
cash or by certified or official bank check.
4. Option Price. Subject to adjustment as provided in
Section 10, the purchase price of the Shares covered by this
Agreement shall be $25.00 per share.
5. Non-Transferability of Option. The Option shall
not be transferable otherwise than by will or by the laws of
descent and distribution. Without limiting the generality of the
foregoing, the Option may not be assigned, transferred (except as
permitted in the preceding sentence), pledged or hypothecated in
any way (whether by operation of law or otherwise), and shall not
be subject to levy, attachment or similar process. Any attempt
to assign, transfer, pledge or hypothecate the Option contrary
the provisions of this Agreement, and any levy, attachment or
similar process upon the Option shall be null and void and
without effect, and the Company's Board of Directors or the Stock
Option Committee thereof may, in its discretion, upon the
happening of any such event, terminate the Option as of the date
of such event.
6. No Rights Prior to Issuance of Shares. The holder
of the Option shall not have any rights to dividends nor any
other rights of a shareholder with respect to the Shares covered
- 4 -
<PAGE> 5
by the Option until the Shares have been issued (as evidenced by
the appropriate entry on the books of the transfer agent of the
Company) following exercise of the Option prior to its
termination.
7. Section 9 of the Employment Agreement Violation.
Notwithstanding anything to the contrary contained herein, in the
event of a material breach by the Optionee at any time of the
provisions of Section 9 of the employment Agreement and
termination of employment of the Executive if not previously
terminated, the unexercised portion of the Option (both vested
and non vested) shall automatically and without notice terminate
and become null and void.
8. Restrictions on Exercise and on Common Stock.
8.1 The Shares issued upon exercise of the Option
shall be issued only to Optionee or a person permitted to
exercise the Option pursuant to Section 2.3. Each share
certificate representing Shares purchased upon exercise of the
Option shall bear a legend stating that the Shares evidenced
thereby may not be sold or transferred except in compliance with
the Securities Act of 1933, as amended (the "1933 Act"), and the
provisions of the employment Agreement. The certificate(s) may
be made subject to a stop transfer order placed with the
Company's transfer agent,
8.2 Notwithstanding any other provision of this
Agreement, unless the issuance of Shares upon exercise of the
Option shall then be covered by an effective registration
statement under the 1933 Act (which the Company shall have no
obligation to file but has the present intention to file a
Registration Statement on Form S-8 covering such Shares), the
Company shall have no obligation to issue any Shares pursuant to
an exercise of the Option in the absence of an opinion of counsel
to the Company that said sale may be effected pursuant to an
exemption from the registration requirements of the 1933 Act. If
the Company's Common Stock is not then publicly traded, the
Company shall have no obligation to file a registration statement
or take other steps to permit the Shares to be issued in
compliance with the 1933 Act. It shall be a further condition to
the Company obligation to issue and deliver to Optionee
certificates for those Shares, that Optionee deliver to the
Company in writing a representation that such Optionee is
exercising such Option for has own account (and, unless the
Shares are then registered under the 1933 Act,) for investment
only and not with a view to distribution and that the Optionee
will not make any sale, transfer or other disposition of any
Shares purchased except (i) pursuant to the registration thereof
under the 1933 Act, (ii) pursuant to an opinion of counsel
satisfactory in form and substance to the Company that the sale,
transfer or other disposition may be made without registration,
- 5 -
<PAGE> 6
or (iii) pursuant to a "no action" letter from the Securities and
Exchange Commission, Optionee has been advised and understands
the Shares must be held indefinitely unless they are registered
for resale under the 1933 Act or an exemption from registration
is available and that the Company is under no obligation to
register those Shares under the 1933 Act for resale or to take
any action which would make available to the holder any exemption
from registration.
9. Right to Terminate Employment. This Agreement does
not constitute a contract of, or an implied promise to continue,
Optionee's employment or status with Medco or any subsidiary of
Medco; and nothing contained in this Agreement shall confer upon
Optionee the right to continue such employment or status; nor
does this Agreement affect the right of Medco to terminate
Optionee's employment at any time. Optionee shall have no rights
in the benefits conferred by the Option or in any Shares except
to the extent the Option is exercised while vested and prior to
termination. Termination of the Option by reason of cessation of
employment shall give no rise for any claim for damages by
Optionee under this Agreement and shall be without prejudice to
any rights or remedies which Medco or any subsidiary of Medco may
have against Optionee.
10. Adjustment.
10.1 The number and price per Share covered by the
Option, and any other rights under the Option, shall be
appropriately adjusted, as deemed appropriate by the Company's
Board of Directors or the Stock Option Committee, as the case may
be (whose good faith determination shall be absolute and binding
upon the Optionee), to reflect any subdivision (stock split) or
consolidation (reverse split) of the issued Common Stock of the
Company, or any other recapitalization of the Company, or any
business combination or other transaction involving the Company,
which shall substantially affect the rights of holders of Common
Stock. The Stock Option Committee or the Board of Directors, as
the case may be, shall provide for appropriate adjustment of the
Option in the event of stock dividends or distributions of assets
or securities of other companies owned by the Company to
stockholders relating to Common Stock for which the record date
is prior to the date the Shares purchased by exercise of the
Option are issued or transferred, except that no such adjustment
shall be made for cash dividends or stock dividends of 10% or
less (cumulatively, in the aggregate).
10.2 In the event of a change in the presently
authorized Common Stock of the Company which is limited to a
change of all of its presently authorized shares of Common Stock
with par value into the same number of shares without par value,
or any change of all of the then authorized shares of Common
- 6 -
<PAGE> 7
Stock with par value into the same number of shares with a
different par value, the shares resulting from any such change
shall be deemed to be Shares as defined in Section 1, and no
change in the number of shares covered by the Option or in the
Option Price shall take place.
11. Notices. Each notice relating to this Agreement
shall be in writing and delivered in person or by certified mail
to the proper address. Each notice to the Company shall be
addressed to it at its principal office, attention of the Vice
President - Treasurer, with a copy to the Executive Vice
president - General Counsel. Each notice to Optionee (or other
person or persons then entitled to exercise the Option) shall be
addressed to Optionee (or such other person or persons) at
Optionee's most recent address on the books of the Company.
Anyone to whom a notice may be given under this Agreement may
designate a new address by notice to that effect. Each notice
shall be deemed to have been given on the day it is received.
12. Benefits of Agreement. This Agreement shall inure
to the benefit of and be binding upon each successor of the
Company. Subject to Section 2.3, rights granted to the Company
under this Agreement shall be binding upon Optionee's personal
representatives and heirs at law.
13. Source of Rights. This Agreement and the
Employment Agreement shall be the sole and exclusive source of
any and all rights which Optionee, and Optionee's personal
representatives or heirs at law, may have in respect of the
Option as granted hereunder. In the event of any conflict
between the provisions of the Employment Agreement and of this
Agreement, the provisions of the Employment Agreement shall
prevail.
14. Captions. The captions contained in this Agreement
are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
15. Interpretation and Construction. The good faith
interpretation and construction by the Board of Directors or by
the Stock Option Committee of any provision of this Agreement
shall be final and conclusive and binding on the parties hereto.
16. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New
Jersey without regard to any principles of conflict of laws.
- 7 -
<PAGE> 8
Execution
The parties signed this Agreement as of the day and year
first above written, whereupon is became binding in accordance
with its terms.
MEDICAL MARKETING GROUP, INC.
By: James V. Manning
------------------------
James V. Manning
Executive Vice President -
Finance
Carl Kanter
---------------
CARL KANTER
- 8 -
<PAGE> 1
EXHIBIT 4.12
ASSUMPTION AGREEMENT dated as of April 6, 1994, between MEDICAL
MARKETING GROUP, INC., a Delaware corporation (the "Company"), and MERCK & CO.,
INC., a New Jersey corporation ("Parent");
WHEREAS, Medco Containment Services, Inc., ("Medco"), MMG
Acquisition Corp. and the Company entered into an Agreement and Plan of Merger,
dated as of November 15, 1993 (the "Merger Agreement"; capitalized terms not
defined herein shall have the meanings set forth in the Merger Agreement);
WHEREAS, pursuant to Section 2.05 of the Merger Agreement, the
parties agreed that as of the Effective Time, Parent shall assume the Company's
obligations with respect to each Stock Option (except for the Stock Options set
forth in Section 2.05 of the Company Disclosure Schedule) granted pursuant to
the Stock Option Plans or granted to certain consultants, directors and key
employees outside of any of the Stock Option Plans, which are outstanding as of
the date hereof (the "Assumed Options") to purchase Shares, as modified by
Section 2.05 of the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, Medco, the Company and Parent agree as follows:
1. As of the date hereof, Parent assumes the Company's obligations
with respect to each Assumed Option to purchase Shares, as modified pursuant to
paragraph 2 below.
2. The Assumed Options shall continue to have, and be subject to,
the same terms and conditions set forth in the Stock Option Plans and
agreements pursuant to which the Assumed Options were issued, as in effect
immediately prior to the date hereof, except that:
(a) the Assumed Options shall be exercisable for that
number of whole Merck Shares equal to the product of the number of
Shares covered by the Assumed Option immediately prior to the date
hereof multiplied by the Exchange Ratio rounded up to the nearest
whole number of Merck Shares, and
<PAGE> 2
(b) the per share exercise price for Merck Shares
issuable upon the exercise of the Assumed Option shall be equal to
the quotient determined by dividing the exercise price per Share
specified for such Assumed Option under the applicable Stock Option
Plan or agreement immediately prior to the date hereof by the
Exchange Ratio, rounding the resulting exercise price down to the
nearest whole cent.
3. Each Assumed Option's date of grant shall be the date on which
the Assumed Option was originally granted.
4. Nothing in this Assumption Agreement or in Section 2.05 of the
Merger Agreement shall affect the schedule of vesting (or the acceleration
thereof) with respect to the Assumed Options.
5. Parent, to the extent legally permissible, shall administer
each Assumed Option in a manner that complies with Rule 16b-3 promulgated under
the Securities Exchange Act of 1934, as amended, to the extent such Assumed
Option complied with such rule prior to the Merger.
6. The parties hereto intend that, subject to applicable Law, each
Assumed Option qualify following the date hereof as "incentive stock options"
(as defined in Section 422 of the Internal Revenue Code of 1986, as amended) to
the extent such Assumed Option qualified as an incentive stock option prior to
the date thereof.
7. The parties hereto acknowledge and agree that the holders of
the Assumed Options shall be deemed to be third party beneficiaries of this
Assumption Agreement.
8. The parties hereto agree that this Assumption Agreement may be
executed in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original but all of which when taken together shall constitute one and the same
agreement.
2
<PAGE> 3
IN WITNESS WHEREOF, Medco, the Company and Parent have caused this
Assumption Agreement to be signed by their respective officers hereunto duly
authorized, all as of the date first written above.
MEDICAL MARKETING GROUP, INC.
By: /s/ Douglas W. Wamsley
-----------------------------
Vice President
MERCK & CO., INC.
By: /s/ MARY M. MCDONALD
-----------------------------
Senior Vice President and
General Counsel
MEDCO CONTAINMENT SERVICES, INC.
By: /s/ Victor L. Marrero
-----------------------------
Senior Vice President
3
<PAGE> 1
EXHIBIT 5
[Merck Letterhead]
OPINION OF COUNSEL
April 28, 1994
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, New Jersey 08889-0100
Dear Sir or Madam:
Merck & Co., Inc. (the "Company") has requested my opinion, as Associate General
Counsel of the Company, in connection with the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1993 (the "Act")
with respect to 1,250,000 shares of common stock, no par value, of the Company
(the "Shares") to be delivered in accordance with the provisions of the plans
covered by the Registration Statement (the "Plans").
I or attorneys under my supervision have examined such records and have made
such examination of law as I deem appropriate in connection with rendering such
opinion. I have also assumed that the registration provisions of the Act and
of such securities or "Blue Sky" laws as may be applicable shall have been
complied with. Based on the foregoing, it is my opinion that the Shares, when
delivered in accordance with the provisions of the Plans, will be legally
issued, fully paid and non-assessable.
I hereby 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 Act or
the Rules and Regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Bert I. Weinstein
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
reports dated January 25, 1994 included in and incorporated by reference in
Merck & Co., Inc.'s Form 10-K for the year ended December 31, 1993 and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN & CO.
New York, New York
May 4, 1994
