<PAGE> 1
As filed with the Securities and Exchange Commission on November 15, 1995
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCK & CO., INC.
(Exact name of issuer as specified in its charter)
P.O. BOX 1000
WHITEHOUSE STATION, NEW JERSEY 08889-0100
(Address of Principal Executive Offices)
NEW JERSEY 22-1109110
(State of Incorporation) (I.R.S. Employer Identification No.)
1996 INCENTIVE STOCK PLAN
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
MERCK EMPLOYEES FEDERAL CREDIT UNION STOCK OPTION PLAN
(Full title of the plans)
CELIA A. COLBERT
Secretary and Assistant General Counsel
MERCK & CO., INC.
P.O. Box 100
Whitehouse Station, New Jersey 08889-0100
(908) 423-1000
(Name, address and telephone number of agent for service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box./x/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Title of Securities Amount Proposed Proposed Amount of
to be registered to be maximum maximum registration
registered offering price aggregate fee
per share* offering price*
- ------------------------------------------------------------------------------------------------------------
<S> <C>
Common Stock (no Par Value).. 65,232,500 shares $58.0625 $3,787,562,031 $757,512.41
============================================================================================================
</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 November 8, 1995.
- -------------------------------------------------------------------------------
<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:
(a) Annual Report on Form 10-K, dated March 22, 1995 for the fiscal year ended
December 31, 1994;
(b) Form 10-K/A filed on June 29, 1995, amending Merck's Annual Report on Form
10-K for the fiscal year ended December 31, 1994.
(c) Quarterly Report on Form 10-Q filed on May 11, 1995 for the quarter ended
March 31, 1995;
(d) Quarterly Report on Form 10-Q filed on August 10, 1995 for the quarter
ended June 30, 1995;
(e) Quarterly Report on Form 10-Q filed on November 13, 1995 for the quarter
ended September 30, 1995;
(f) Current Report on Form 8-K filed on July 19, 1995;
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(g) Current Report on Form 8-K filed on October 4, 1995;
(h) Proxy Statement for the Annual Meeting of Stockholders held on April 25,
1995;
(i) The descriptions of the Common Stock of the registrant set forth in the
registrant's Registration Statements pursuant to Section 12 of the Exchange
Act, and any amendment or report filed for the purpose of updating such
description.
All documents filed by the registrant pursuant to Section 13, 14 or
15(d) of the Exchange Act from the date hereof and prior to the termination of
the offering of the securities offered hereby shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents. An Exhibit Index can be found on page 13 of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock will be passed upon for the Company by
Mary M. McDonald, Senior Vice President and General Counsel of the Company. Ms.
McDonald is eligible to participate in the Plans and does participate.
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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 in a knowing violation of law or (c) resulted in receipt by
the director or officer of an improper personal benefit.
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The Company's Restated Certificate of Incorporation provides that, to
the fullest extent permitted by the laws of the State of New Jersey, directors
and officers of the Company shall not be personally liable to the Company or its
stockholders for damages for breach of any duty owed to the Company or its
stockholders, except that a director or officer shall not be relieved from
liability for any breach of duty based upon an act or omission (a) in breach of
such person's duty of loyalty to the Company or its stockholders, (b) not in
good faith or involving a knowing violation of law or (c) resulting in receipt
by such person of an improper personal benefit.
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
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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,
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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 Description Method of Filing
Number ----------- ----------------
- ------
<S> <C> <C>
4(a) --Restated Certificate of Incorporation of the Incorporated by reference to Form 10-K
registrant (May 6, 1992) Annual Report for the fiscal year ended
December 31, 1992
4(b) --By-Laws of the registrant (as amended effective Incorporated by reference to Form 10-K
June 9, 1994) Annual Report for the fiscal year ended
December 31, 1994
5 --Opinion and Consent of Mary M. McDonald, Filed with this Registration Statement
General Counsel of registrant
23 --Consent of Arthur Andersen LLP Included at Page 12 of this Registration
Statement
24 -- Certified Resolution of Board of Directors and Filed with this Registration Statement
Power of Attorney
</TABLE>
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1. (a) To file, during any period in which offers or sales are being made, a
post-effective amendment to the registration statement to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
2. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new
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registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the issuer
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has
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duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunder duly authorized, in the Township of Readington and
the State of New Jersey on the 15th day of November, 1995.
Merck & Co., Inc.
By *
-------------------------------
Raymond V. Gilmartin
(Chairman of the Board,
President and Chief Executive
Officer)
By /s/ Celia A. Colbert
-------------------------------
Celia A. Colbert
(Secretary and
Assistant General Counsel)
(Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C>
* Chairman of the Board, President November 15, 1995
- ------------------------------- and Chief Executive Officer;
Raymond V. Gilmartin Principal Executive Officer
and Director
* Senior Vice President and Chief November 15, 1995
- ------------------------------- Financial Officer; Principal
Judy C. Lewent Financial Officer
* Vice President, Controller; November 15, 1995
- ------------------------------- Principal Accounting Officer
Peter E. Nugent
* Director November 15, 1995
- -------------------------------
H. Brewster Atwater, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
*
- ------------------------------- Director November 15, 1995
Derek Birkin
*
- ------------------------------- Director November 15, 1995
Lawrence A. Bossidy
*
- ------------------------------- Director November 15, 1995
William G. Bowen
*
- ------------------------------- Director November 15, 1995
Johnnetta B. Cole
*
- ------------------------------- Director November 15, 1995
William N. Kelley
*
- ------------------------------- Director November 15, 1995
Samuel O. Thier
*
- ------------------------------- Director November 15, 1995
Dennis Weatherstone
</TABLE>
* Celia A. Colbert, by signing her name hereto, does hereby sign this
document pursuant to powers of attorney duly executed by the persons named,
filed with the Securities and Exchange Commission as an exhibit to this
document, on behalf of such persons, all in the capacities and on the date
stated, such persons including a majority of the directors of the Company.
By /s/ Celia A. Colbert
-------------------------------
Celia A. Colbert
(Secretary and Assistant
General Counsel)
(Attorney-in-Fact)
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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
report dated January 24, 1995 included in and incorporated by reference in the
Annual Report on Form 10-K of Merck & Co., Inc. as amended by Form 10-K/A filed
on June 29,1995 for the year ended December 31, 1994 and to all references to
our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
New York, N.Y.
November 15, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION METHOD OF FILING
<S> <C> <C>
4(a) --Restated Certificate of Incorporation --Incorporated by reference to Form 10-
of the registrant (May 6, 1992) K Annual Report for the fiscal year
ended December 31, 1992
4(b) --By-Laws of the registrant (as amended --Incorporated by reference to Form 10-
effective June 9, 1994) K Annual Report for the fiscal year
ended December 31, 1994
5 --Opinion and Consent of Mary M. Filed with this Registration Statement
McDonald, General Counsel of registrant
23 --Consent of Arthur Andersen LLP Included at Page 12 of this
Registration Statement
24 --Certified Resolution of Board of Filed with this Registration Statement
Directors and Power of Attorney
</TABLE>
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<PAGE> 1
Exhibit 5
November 15th, 1995
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, NJ 08889
Dear Sir or Madam:
Merck & Co., Inc. (the "Company") has requested my opinion, as General
Counsel of the Company, in connection with the Registration Statement on Form
S-8 to be filed by the Company with the Securities and Exchange Commission under
the Securities Act of 1933 (the "Act") with respect to 65,232,500 shares of the
Company's Common Stock, no par value (the "Shares"), which are issuable pursuant
to the Company's 1996 Incentive Stock Plan, Non-Employee Directors Stock Option
Plan and Merck Employees Federal Credit Union Stock Option Plan (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 thereon, it is my opinion that, when issued and delivered
in accordance with the provisions of the Plans, the shares will be legally
issued, fully paid and non-assessable.
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<PAGE> 2
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 Securities
Act of 1933 or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Mary M. McDonald
----------------------
Mary M. McDonald
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EXHIBIT 24
CERTIFIED RESOLUTION OF BOARD OF
DIRECTORS
I, Dolores O. Rosinski, Senior Assistant Secretary of Merck & Co.,
Inc., a Corporation duly organized and existing under the laws of the State of
New Jersey, do hereby certify that the following is a true copy of a resolution
adopted on October 24, 1995, at a meeting of the Directors of said Corporation
held in Whitehouse Station, New Jersey, duly called in accordance with the
provisions of the By-Laws of said Corporation, and at which a quorum of
Directors was present:
"RESOLVED, that the proper officers of Merck & Co., Inc. (the
"Company") are hereby authorized and directed on behalf of the Company
to prepare, execute and file with the Securities and Exchange
Commission (the "SEC") Registration Statements and any and all
amendments thereto, and any and all exhibits and other documents
relating thereto or required by law or regulation in connection
therewith, for the registration under the Securities Act of 1933 of the
shares of Common Stock of the Company which may be purchased under the
1996 Incentive Stock Plan, the Non-Employee Directors Stock Option Plan
and the Merck Employees Federal Credit Union Stock Option Plan and the
interests in the plans covered by the USHH Incentive Plan and the Astra
Merck Inc. Employee Savings and Security Plan (the "Plans");
RESOLVED, that Celia A. Colbert is hereby appointed and
designated the person duly authorized to receive communication and
notices from the SEC with respect to such Registration Statements or
any amendments thereto and as agent for service of process;
RESOLVED, that each officer, director or employee of the
Company who may be required to execute such Registration Statements or
any amendments thereto (whether on behalf of the Company, or as an
officer or director thereof, or by attesting the seal of the Company,
or on behalf of the Plans, or otherwise), is hereby authorized to
execute a power of attorney appointing Celia A. Colbert and Mary M.
McDonald, and each of them severally, his or her true and lawful
attorney or attorneys to execute in his or her name, place and stead
(in any such capacity) such Registration Statements and any and all
amendments thereto and any and all exhibits and other documents
necessary or incidental in connection therewith, and to file the same
with the SEC, each of said attorneys to have power to act with or
without the other, and to have full power and authority to do and
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perform in the name and on behalf of each of said officers, directors
and employees, or any of them, as the case may be, every act whatsoever
necessary or advisable to be done in the premises as fully and to all
intents and purposes as any such officer, director or employee might or
could do in person;
RESOLVED, that the proper officers of the Company are hereby
authorized and directed to arrange with the New York Stock Exchange and
the Philadelphia Stock Exchange for the listing of the additional
shares of the Common Stock of the Company to be issued in connection
with the Plans; and
RESOLVED, that the proper officers of the Company, with the
advice of counsel, are hereby authorized to take any action and to
execute and deliver any letters, documents, agreements or other
instruments as they deem necessary, appropriate or desirable to carry
out the purposes and intents of this Special Resolution."
IN WITNESS WHEREOF, I have hereunto subscribed my signature and affixed
the seal of the Corporation this 15th day of November, 1995.
[Corporate Seal] /s/ Dolores O. Rosinski
-----------------------------------
Senior Assistant Secretary
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EXHIBIT 24
POWER OF ATTORNEY
Each of the undersigned does hereby appoint CELIA A. COLBERT and MARY
M. McDONALD, and each of them severally, to be his or her true and lawful
attorney or attorneys to execute on behalf of the undersigned (whether on behalf
of Merck & Co., Inc., or as an officer or director thereof, or by attesting the
seal of the Company, or otherwise) Registration Statements in connection with
the registration under the Securities Act of 1933, as amended, of shares of
Common Stock of Merck & Co., Inc. which may be issued pursuant to the plans
covered by this Registration Statement, including amendments thereto and all
other documents in connection therewith.
IN WITNESS WHEREOF, this instrument has been duly executed as of the
15th day of November, 1995.
MERCK & CO., INC.
By /s/ Raymond V. Gilmartin
------------------------------
Raymond V. Gilmartin
Chairman of the Board, President and
Chief Executive Officer
(Principal Executive Officer; Director)
/s/ Judy C. Lewent
- ------------------------
Judy C. Lewent Senior Vice President and Chief Financial Officer
(Principal Financial Officer)
/s/ Peter E. Nugent
- ------------------------
Peter E. Nugent Vice President, Controller
(Principal Accounting Officer)
DIRECTORS
/s/ H. Brewster Atwater, Jr. /s/ Johnnetta B. Cole
- ------------------------------ -----------------------------
H. Brewster Atwater, Jr. Johnnetta B. Cole
/s/ Derek Birkin /s/ William N. Kelley
- ------------------------------ -----------------------------
Derek Birkin William N. Kelley
/s/ Lawrence A. Bossidy /s/ Samuel O. Thier
- ------------------------------ -----------------------------
Lawrence A. Bossidy Samuel O. Thier
/s/ William G. Bowen /s/ Dennis Weatherstone
- ------------------------------ -----------------------------
William G. Bowen Dennis Weatherstone
18
