<PAGE> 1
As filed with the Securities and Exchange Commission on January 25, 1995
Registration No 33-
-----------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MERCK & CO., INC.
(Exact Name of Registrant as specified in its charter)
NEW JERSEY 22-1109110
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
------------------------
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889-0100
(908) 423-1000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
MARY M. MCDONALD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
MERCK & CO., INC.
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889-0100
(908) 423-1000
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
Copy to:
Bert I. Weinstein, Esq.
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, New Jersey 08889-0100
(908) 423-1000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
<PAGE> 2
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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 Proposed Proposed
Each Class Maximum Maximum Amount
of Securities Amount Aggregate Aggregate of
to be to be Price(2) Offering Registration
Registered Registered(1) Per Unit Price(2) Fee
- ---------- ------------- -------- -------- ---
<S> <C> <C> <C> <C>
Common Stock
(no par 459,720 shares $7.50 $3,452,792 $1,192
value)
</TABLE>
1. There are being registered hereunder 459,720 shares of Common Stock
issuable upon exercise of outstanding stock options granted under
certain stock option agreements. See "Plan of Distribution." This
Registration Statement also covers an indeterminate number of shares
of Common Stock which may be issuable by reason of stock splits, stock
dividends or similar transactions.
2. The price shown is based upon the maximum aggregate price at which the
securities issuable upon exercise of the stock options are offered, in
accordance with Section 6 of the Securities Act of 1933.
------------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states
that this Registration Statement shall thereafter become effective in
accordance with section 8(a) of the Securities Act of 1933 or until
the Registration Statement shall become effective on such date as the
commission, acting pursuant to said Section 8(a), may determine.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 25, 1995
PROSPECTUS
MERCK & CO., INC.
459,720 shares of
Common Stock, no par value
--------------------------
This Prospectus relates to up to 459,720 shares, (the "Shares") of
Common Stock, no par value (the "Common Stock"), of Merck & Co., Inc.
("Merck"), which are issuable from time to time upon exercise of options
granted pursuant to certain stock option agreements, which are described more
fully under the heading "Plan of Distribution" (the "Stock Option Agreements"),
of Medco Containment Services, Inc. (the "Company"), a wholly owned subsidiary
of Merck and such additional number of shares which may be issuable by reason
of stock splits, stock dividends or similar transactions pursuant to applicable
antidilution provisions of the Stock Option Agreements. The Stock Option
Agreements were originally issued by Medco Containment Services, Inc. ("Old
Medco"), a Delaware corporation, which merged (the "Merger") with and into the
Company on November 18, 1993. As a result of the Merger, the Company changed
its name to Medco Containment Services, Inc. Pursuant to the Agreement and
Plan of Merger (the "Merger Agreement"), dated as of July 27, 1993, between
Merck, the Company and Old Medco, the Company assumed Old Medco's obligations
with respect to the Stock Option Agreements. See "Plan of Distribution".
Merck will pay all the expenses of this offering. Merck Common Stock
is quoted on the New York Stock Exchange (symbol: MRK). On January 23, 1995,
the last sale price of the Merck Common Stock as reported on the New York Stock
Exchange was $37.875 per Merck share.
The aggregate proceeds to Merck upon exercise of all options covered
by the Stock Option Agreements will be approximately $3,452,792 before
deducting the expenses of the offering.
<PAGE> 4
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESEN-
TATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
THE DATE OF THIS PROSPECTUS IS JANUARY 25, 1995.
<PAGE> 5
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING DESCRIBED HEREIN AND THEREIN, AND, IF GIVEN OR MADE, SUCH OTHER
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY MERCK OR BY ANY UNDERWRITER, DEALER OR AGENT. NEITHER THIS PROSPECTUS NOR
ANY PROSPECTUS SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREUNDER IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION OR SALE IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER IMPLIES THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF MERCK AT ANY
TIME SUBSEQUENT TO THE DATE HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS
OF ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
Merck is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The reports, proxy statements and other information filed by Merck
with the Commission can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and should be available at the Commission's Regional
Offices at 7 World Trade Center, New York, New York 10048, and Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material also can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Merck Shares are listed on the New York Stock Exchange
(the "NYSE"), and certain of Merck's reports, proxy materials and other
information may be available for inspection at the offices of the NYSE, 20
Broad Street, New York, New York 10005.
Merck has filed a registration statement on Form S-3 (herein, together
with all amendments and exhibits, referred to as the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act") with
respect to the securities offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement and the exhibits filed as a part thereof. Statements contained herein
concerning any document filed as an exhibit are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement. Each such statement is qualified in its
entirety by such reference.
<PAGE> 6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Merck (File No.
1-3305) are incorporated by reference in this Prospectus:
1. Merck's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993;
2. Merck's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994;
3. Merck's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1994;
4. Merck's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1994;
5. Merck's Proxy Statement for the Annual Meeting of Stockholders
held April 26, 1994;
6. Merck's Current Report on Form 8-K filed August 17, 1994;
7. Merck's Current Report on Form 8-K filed on November 7, 1994;
and
8. Merck's Current Report on Form 8-K filed on December 28, 1994;
9. The descriptions of shares of common stock of Merck set forth
in Merck's Registration Statements 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 Merck pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, after the date of this Prospectus and prior to the
termination of the offering hereby shall be deemed to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and the Registration Statement of which it is a
part to the extent that a statement contained herein or in any other
subsequently filed document which is also incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus or such Registration
Statement.
Merck will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated herein by reference, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference to such documents).
Requests for such copies should be directed to the Office of the Secretary,
Merck & Co., Inc., P.O. Box 100, One Merck Drive, Whitehouse Station, New
Jersey 08889-0100, telephone number (908) 423-4042.
<PAGE> 7
USE OF PROCEEDS
The aggregate proceeds to Merck assuming the exercise of all of the
stock options covered by the Stock Option Agreements will be approximately
$3,452,792 before deducting the expenses of this offering. Merck will use such
proceeds for general corporate purposes.
PLAN OF DISTRIBUTION
The securities offered hereby may be acquired by (i) Citizens
Corporation ("Citizens") upon exercise of options to purchase 145,682 shares of
Common Stock granted under stock option agreement dated as of March 1, 1990
(the "Citizens Option Agreement"), (ii) Medco Containment Services Foundation,
Inc. (the "Foundation") upon exercise of options to purchase 303,503 shares of
Common Stock granted under a Stock Option Agreement dated as of June 20, 1991
(the "Foundation Stock Option Agreement"), and (iii) McFarland Dewey & Co.
("McFarland Dewey") upon exercise of options to purchase 10,535 shares of
Common Stock pursuant to the terms of a Common Stock Purchase Option and
Performance Based Common Stock Purchase Option, each dated January 22, 1992
(the "McFarland Dewey Stock Option Agreements").
Under the Citizens Stock Option Agreement, Citizens was originally
granted a right to purchase 250,000 shares (after giving effect to a
five-for-two share stock split in January 1992) of Old Medco common stock at an
exercise price of $8.35 per share. These options become exercisable at the
rate of 20% in each 12-month period after December 31, 1990. Unless sooner
exercised, these options expire at the earlier of (i) the tenth anniversary of
the date of grant or (ii) sixty (60) days following the termination of the
Marketing Agreement dated as of March 1, 1991 between Citizens-Medco
Corporation ("Citizens-Medco"), Citizens, the Company and Citizens Medical
Corporation, a subsidiary of Citizens. The options for 200,000 shares of Old
Medco which remained unexercised on the date of the Merger were converted into
the right to receive at an aggregate exercise price of $1,670,000 an aggregate
of 145,682 Merck shares and $3,120,000 in cash. The vesting schedule was not
changed as a result of the Merger.
Under the Foundation Stock Option Agreement, the Foundation was
originally granted a right to purchase 250,000 shares (after giving effect to a
five-for-two share stock split in January 1992) of Old Medco common stock at an
exercise price of $19.20 per share. These options become exercisable at the
rate of 20% at the end of each 12-month period after June 20, 1991. Unless
sooner exercised, these options expire on the day immediately preceeding the
tenth anniversary of the date of grant. As a result of the Merger, the
Foundation Stock Option was automatically converted into the right to purchase
303,503 shares of Merck Common Stock at an exercise price of $15.81 per share.
Under the McFarland Dewey Stock Option Agreements, McFarland Dewey was
originally granted a right to purchase shares of American Biodyne Inc. at the
time of the acquisition by American Biodyne of Achievement & Guidance Centers
of America, which were automatically converted into the right to purchase
14,462 shares of Old Medco common stock at an exercise price of $22.82 per
share when Old Medco acquired American Biodyne in December 1992. These options
became fully exercisable on January 22,
<PAGE> 8
1994 and unless exercised sooner, expire on January 22, 2002. The 14,462
options for shares of Old Medco common stock which remained unexercised on the
date of the Merger were converted into the right to receive at an aggregate
exercise price of $330,023 an aggregate of 10,535 Merck shares and $225,607 in
cash.
LEGAL MATTERS
The validity of the Merck Shares offered hereby has been passed upon
for Merck by Bert I. Weinstein, Assistant General Counsel of Merck.
EXPERTS
The audited Consolidated Financial Statements and schedules of Merck
and its subsidiaries included in Merck's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993 and incorporated by reference in this
Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated herein in reliance upon the
authority of said firm as experts in giving said reports.
<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Merck estimates that expenses, other than underwriting compensation,
in connection with the offering described in this Registration Statement will
be as follows:
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . . . . . . . . $1,192
-----
Printing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,000
Legal Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,500
-----
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $4,692
======
</TABLE>
Item 15. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power to indemnify a director or officer against his or her
expenses and liabilities in connection with any proceeding involving the
director or officer by reason of his or her being or having been such a
director or officer, other than a proceeding by or in the right of the
corporation, if such a director or officer acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation; and with respect to any criminal proceeding, such director or
officer had no reasonable cause to believe his or her conduct was unlawful.
The indemnification and advancement of expenses shall not exclude any
other rights, including the right to be indemnified against liabilities and
expenses incurred in proceedings by or in the right of the corporation, to
which a director or officer may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a director or officer
if a judgment or other final adjudication adverse to the director or officer
establishes that his or her acts or omissions (a) were in breach of his or her
duty of loyalty to the corporation or its shareholders, (b) were not in good
faith or involved a knowing violation of law or (c) resulted in receipt by the
director or officer of an improper personal benefit.
The Registrant's Restated Certificate of Incorporation provides that,
to the fullest extent permitted by the laws of the State of New Jersey,
directors and officers of the Registrant shall not be personally liable to the
Registrant or its stockholders for damages for breach of any duty owed to the
Registrant or its stockholders, except that a director or officer shall not be
relieved from liability for any breach of duty based upon an act or omission
(a) in breach of such person's duty of loyalty to the Registrant or its
stockholders, (b) not in good faith or involving a knowing violation of law or
(c) resulting in receipt by such person of an improper personal benefit.
The By-Laws of the Registrant provide that a former, present or
future director, officer or employee of the Registrant or the legal
<PAGE> 10
representative of any such director, officer or employee shall be indemnified
by the Registrant:
(a) against reasonable costs, disbursements and counsel fees
paid or incurred where such person has been successful in the defense
on the merits or otherwise of any pending, threatened or completed
civil, criminal, administrative or arbitrative action, suit or
proceeding, brought by reason of such person's being or having been
such director, officer or employee, and
b) with respect to the defense of any such action, suit,
proceeding, inquiry or investigation for which indemnification is not
made under (a) above, against reasonable costs, disbursements (which
shall include amounts paid in satisfaction of settlements, judgments,
fines and penalties, exclusive, however, of any amount paid or payable
to the Registrant) and counsel fees if such person acted in good faith
and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant, and in connection
with any criminal proceedings such person also had no reasonable cause
to believe the conduct was unlawful, with the determination as to
whether the applicable standard of conduct was met to be made by a
majority of the members of the Board of Directors (sitting as a
Committee of the Board) who were not parties to such inquiry,
investigation, action, suit or proceeding or by any one or more
disinterested counsel to whom the question may be referred by the
Board of Directors; Provided, however, in connection with any
proceeding by or in the right of the Registrant, no indemnification
shall be provided as to any person adjudged by any court to be liable
to the Registrant except as and to the extent determined by such
court.
The Registrant enters into indemnification agreements with its
directors and officers and enters into insurance agreements on its own behalf.
The indemnification agreements provide that the Registrant agrees to hold
harmless and indemnify its directors and officers to the fullest extent
authorized or permitted by the Business Corporation Act of the State of New
Jersey, or any other applicable law, or by any amendment thereof or other
statutory provisions authorizing or permitting such indemnification that is
adopted after the date hereof. Without limiting the generality of the
foregoing, the Registrant agrees to hold harmless and indemnify its directors
and officers to the fullest extent permitted by applicable law against any and
all expenses, judgments, fines, and amounts paid in settlement actually and
reasonably incurred by its directors and officers in connection with the
defense of any present or future threatened, pending, or completed claim,
action, suit, or proceeding by reason of the fact that they were, are, shall
be, or shall have been a director or officer of the Registrant, or are or were
serving, shall serve, or shall have served, at the request of the Registrant,
as a director or officer of another corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise.
ITEM 16. EXHIBITS.
2 - Agreement and Plan of Merger by and among Merck, M Acquisition
Corp. and the Company, as amended, dated as of July 27, 1993
<PAGE> 11
(incorporated by reference to Exhibit 2 to the Registrant's Registration
Statement on Form S-4 (file No. 33-50667)).
4.1 - Stock Option Agreement, between Medco Containment Services, Inc.
and Citizens and Health Corporation, dated March 1, 1990.
4.2 - Stock Option Agreement, between Medco Containment Services, Inc.
and Medco Containment Services Foundation, Inc., dated as of June 20, 1991.
4.3 - Form of Option and Performance-Based Option between American
Biodyne, Inc. and McFarland Dewey & Co. dated January 22, 1992 and amendment
letter dated April 16, 1993 between McFarland Dewey & Co. and Medco relating to
an aggregate of 10,535 shares of Merck Common Stock incorporated by reference
to Exhibit 4.18 to Post Effective Amendment No. 1 to Registration Statement on
Form S-8 to Form S-4 Registration Statement (33-50667) filed on November 29,
1993.
5 - Opinion of Bert I. Weinstein, Assistant General Counsel of the
Registrant, regarding legality.
23.1 - Consent of Arthur Andersen LLP.
23.2 - Consent of Bert I. Weinstein (included in Exhibit 5).
ITEM 17. 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 ln the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(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 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.
<PAGE> 12
(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 section 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.
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.
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 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 23rd day of
January, 1995.
MERCK & CO., INC.
By:/s/ Raymond V. Gilmartin
-------------------------------------
Raymond V. Gilmartin
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 attorneys-in-fact and agents, 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, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 23rd day of January, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Raymond V. Gilmartin Chariman of the Board, President and
---------------------------------- Chief Executive Officer (Principal
(Raymond V. Gilmartin) Executive Officer) and Director
/s/ Judy C. Lewent Senior Vice President and
------------------------------------------ Chief Financial Officer
(Judy C. Lewent) (Principal Financial Officer)
/s/ Peter E. Nugent Vice President, Controller
------------------------------------------ (Principal Accounting Officer)
(Peter E. Nugent)
</TABLE>
<PAGE> 14
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ H. Brewster Atwater, Jr. Director
- ------------------------------------------
(H. Brewster Atwater, Jr.)
/s/ Sir Derek Birkin Director
- ------------------------------------------
(Sir Derek Birkin)
/s/ Lawrence A. Bossidy Director
- ------------------------------------------
(Lawrence A. Bossidy)
/s/ William G. Bowen, Ph.D. Director
- ------------------------------------------
(William G. Bowen, Ph.D.)
/s/ Johnnetta B. Cole, Ph.D. Director
- ------------------------------------------
(Johnnetta B. Cole, Ph.D.)
/s/ Carolyne K. Davis, Ph.D. Director
- ------------------------------------------
(Carolyne K. Davis, Ph.D.)
/s/ Lloyd C. Elam, M.D. Director
- ------------------------------------------
(Lloyd C. Elam, M.D.)
/s/ Charles E. Exley, Jr. Director
- ------------------------------------------
(Charles E. Exley, Jr.)
/s/ William N. Kelley, M.D. Director
- ------------------------------------------
(William N. Kelley, M.D.)
/s/ Samuel O. Thier, M.D. Director
- ------------------------------------------
(Samuel O. Thier, M.D.)
/s/ Dennis Weatherstone Director
- ------------------------------------------
(Dennis Weatherstone)
</TABLE>
<PAGE> 15
EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- ------------
4.1 Stock Option Agreement, between Medco Containment Services, Inc.
and Citizens and Health Corporation, dated March 1, 1990.
4.2 Stock Option Agreement, between Medco Containment Services, Inc.
and Medco Containment Services Foundation, Inc., dated as of
June 20, 1991.
4.3 Form of Option and Performance-Based Option between American
Biodyne, Inc. and McFarland Dewey & Co. dated January 22, 1992
and amendment letter dated April 16, 1993 between McFarland
Dewey & Co. and Medco relating to an aggregate of 10,535 shares
of Merck Common Stock incorporated by reference to Exhibit
4.18 to Post Effective Amendment No. 1 to Registration
Statement Form S-8 to Form S-4 Registration Statement
(33-50667) filed on November 29, 1993.
5 Opinion of Bert I. Weinstein, Associate General Counsel of the
Registrant, regarding legality.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Bert I. Weinstein (included in Exhibit 5).
<PAGE> 1
EXHIBIT 4.1
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement"), dated as of the 1st
day of March 1991, between MEDCO CONTAINMENT SERVICES, INC., a Delaware
corporation (the "Corporation"), and CITIZENS CORPORATION, a Massachusetts
corporation ("Optionee").
RECITAL
The Optionee was granted an option to purchase 100,000 shares of
the Corporation's Common Stock on August 23, 1990, as an inducement for
Citizens Medical Corporation, then a wholly owned subsidiary of the Optionee to
enter into the Marketing Agreement (the "Marketing Agreement") dated as of
March 1, 1991 among the Corporation, the Optionee, Citizens-Medco Corporation
and Citizens Medical Corporation.
AGREEMENTS
In consideration of the premises and the mutual
covenants herein, the Corporation and Optionee agree as follows:
1. Confirmation of Grant of Option., The Corporation, subject
to the terms of this Agreement, hereby confirms that Optionee has been
irrevocably granted, subject to the terms of this Agreement, as of August 23,
1990, the right (the "Option") to purchase 100,000 shares of Common Stock, $.01
par value, of the Corporation. All of the shares of the Corporation's Common
Stock are hereinafter referred to as the "Common Stock", and the 100,000 shares
of Common Stock which are the subject of the Option referred to in the
preceding sentence are hereinafter referred to as the "Shares". Said number of
Shares is subject to adjustment as provided in Section 8.
2. Exercisability of Option.
2.1 Subject to the terms and conditions of this Agreement,
the Option shall be exercisable and becomes vested:
2.1.1 With respect to 20% of the Shares, on and after
December 31, 1991;
2.1.2 With respect to an additional 20% of the Shares,
on and after December 31, 1992;
2.1.3 With respect to an additional 20% of the Shares,
on and after December 31, 1993;
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2.1.4 With respect to an additional 20% of the Shares,
on and after December 31, 1994; and
2.1.5 With respect to an additional 20% of the Shares,
on after December 31, 1995.
2.2 The unexercised portion of the Option (both vested and
nonvested) 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 August 23, 2000, the tenth anniversary of the date
of grant; or
2.2.2 Ninety (90) days following the date of termination
of the Marketing Agreement (during which 90 day period vesting shall not
continue).
3. Method of Exercise of Option. The Option may be exercised
by the Optionee, at its discretion, as to all or part of the Shares as to which
this Option is then vested under Section 2, by giving written notice of the
exercise to the Corporation at its principal business office, specifying the
number of Shares for which the Option is exercised, accompanied by payment in
full for such Shares. 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 Corporation shall cause certificates for the Shares so purchased to be
delivered to Optionee (or its representatives) at the Corporation's principal
business office, against Optionee's payment in full of the purchase price, as
soon as practicable following receipt of notice of exercise in accordance with
its procedure. The purchase price shall be paid in cash or by certified or
official bank check or by immediately available funds (including wire
transfer).
4. Option Price. Subject to adjustment as provided in
Section 8 hereof, the purchase price of the Shares covered by this Agreement
shall be $20.875 per Share.
5. Non-Transferability of Option. The Option shall not be
transferable. Without limiting the generality of the foregoing, the Option may
not be assigned, transferred, pledged or hypothecated in any way, and shall not
be subject to execution, attachment, or similar process. Any attempt to
assign, transfer, pledge, hypothecate or otherwise dispose of the Option
contrary to the provisions of this Agreement, and any levy or any attachment or
similar process upon the Option, shall be null and void. Nothing in this
Section 5 shall prohibit the transfer of the Option as a result of a merger of
the Optionee into or the consolidation of the Optionee with another
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corporation so long as the corporation formed by such consolidation or into
which the Optionee merged shall be a wholly owned subsidiary of Citizens Energy
Corp. (other than for shares owned by directors and employees of Citizens or of
Citizens' subsidiaries so long as Citizens Energy continues to own more than
50% of the voting securities of such corporation and Citizens Energy controls
the affairs of such corporation).
6. No Rights Prior to Exercise of Option. 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 by the Option until the Shares
have been issued to such holder pursuant to Section 3 hereof.
7. Registration of Shares.
7.1 The Shares issued upon exercise of the Option shall
be issued only to the Optionee. Within twenty (20) days after the Effective
Time (as defined in the Agreement and Plan of Merger dated as of March 1, 1991
by and among the Optionee, the Corporation, Citizens-Health Corporation and CM
Acquisition Corp. (the "Merger Agreement")), the Corporation agrees to file a
Registration Statement on Form S-3 registering the Shares to be issued upon
exercise of the Option. The Corporation agrees to keep such registration
statement effective until the Shares covered by such registration statement are
issued upon exercise of the Option or the Option sooner terminates but such
registration statement shall be subject to the provisions of Section 10.1(h)
and 10.1(j) of the Merger Agreement provided that if the Corporation delays any
exercise of the Option by virtue of Section 10.1(h) or 10.1(j) and the Options
would have otherwise expired during such period of delay or within thirty (30)
days after the end of such period of delay the Corporation shall extend the
expiration date of the Option by the number of days extended under Section
10.1(h) or 10.1(j).
8. Adjustment.
8.1 The number and price per Share covered by the
Option, and any other rights under the Option, shall be adjusted by the Board
of Directors of the Corporation or a proper committee thereof to reflect any
subdivision (stock split) or consolidation (reverse split) of the issued Common
Stock of the Corporation, or any other recapitalization of the Corporation
which shall substantially affect the rights of holders of Common Stock.
8.2 In the event of a change in the presently authorized
Common Stock of the Corporation 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 Stock with par value into the same number of shares with a different
par value, the shares resulting from any such change
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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.
8.3 In case of a merger of the Corporation into or a
consolidation of the Corporation with another corporation (other than a
subsidiary of the Corporation), or in case of reorganization or liquidation of
the Corporation, or a sale of all or substantially all of the assets of the
Corporation, the Board of Directors of the Corporation shall make appropriate
provisions to the Option, so that Optionee shall have the right thereafter to
receive upon the exercise thereof the kind and amount of shares of stock and
other securities and property which Optionee would have been entitled to
receive if Optionee had exercised the Option immediately prior to such merger,
sale or transfer.
9. 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 Corporation shall be addressed to it at its principal
office, attention of the President. 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 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.
10. Reservation of Shares. At all times during the term of
this Option the Corporation shall have in its treasury or reserve and keep
available a number of Shares then subject to the Option as shall be sufficient
to satisfy the requirements of this Agreement.
11. Benefits of Agreement. This Agreement shall inure to the
benefit of and be binding upon each successor of the Corporation. All
obligations imposed upon Optionee and all rights granted to the Corporation
under this Agreement shall be binding upon Optionee's successors. This
Agreement shall be the sole and exclusive source of any and all rights which
Optionee or successors may have in respect of the Option as granted hereunder.
12. Governing Law. This Agreement shall be governed by the
laws of the State of Delaware applicable to agreements made to be fully
performed therein.
13. Effective Date. This Agreement will become effective at
the Effective Time as defined in the Merger Agreement and if the Effective Time
shall not occur prior to the termination of the Merger Agreement, this
Agreement shall not become effective and become null and void.
14. Marketing Agreement. This Agreement does not constitute
an obligation on the part of the Corporation or the Optionee to continue the
Marketing Agreement, and nothing contained in this Agreement shall confer upon
either party the right to continue the Marketing Agreement. Except as
otherwise
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provided herein, 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.
EXECUTION
The Corporation and Optionee have caused this Agreement to be
executed, as of the day and year first above written.
MEDCO CONTAINMENT SERVICES, INC.
BY: /s/ CHARLES A. MELE
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CHARLES A. MELE
Executive Vice President
ADDRESS
-------
1900 POLLITT DRIVE
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FAIR LAWN, NEW JERSEY 07410
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CITIZENS CORPORATION
BY:
-------------------------------
Chairman & CEO
ADDRESS
530 Atlantic Avenue
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Boston, MA 02210
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EXHIBIT 4.2
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (this "Agreement") made as of June 20,
1991 (the "Date of Grant"), between MEDCO CONTAINMENT SERIVICES, INC., a
Delaware corporation with offices at 100 Summit Avenue, Montvale, New Jersey
07645 (the "Company"), and MEDCO CONTAINMENT SERVICES FOUNDATION, INC., a New
Jersey nonprofit corporation with offices at 100 Summit Avenue, Montvale, New
Jersey 07645 (the "Foundation").
RECITAL
The Foundation is a tax-exempt organization organized for charitable,
scientific, educational and other purposes within the meaning of
Section 501(c)(3) of the Internal Revenue Code of 1986. The Company desires to
support the Foundation in accomplishing its purposes, and to that end the Board
of Directors of the Company has determined that it is in the best interests of
the Company to grant to the Foundation an option to acquire shares of the
Company's common stock as provided herein.
AGREEMENTS
In consideration of the Recital (which is incorporated by
reference) and the mutual covenants of this Agreement, the Company and the
Foundation agree as follows:
1. Confirmation of Grant of Option. The Company hereby confirms
that the Foundation, together with its successors and permitted assigns, has
been granted, subject to the terms of this Agreement, the right (the "Option")
to purchase 100,000 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 100,000 shares of Common Stock that are subject to
purchase hereunder are hereinafter referred to as "Shares". Such number of
Shares subject to the Option may be adjusted as provided in Section 8.
2. Exercisability of 0ption.
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 20% of the Shares, on and after the
first anniversary of the Date of Grant;
2.1.2 with respect to an additional 20% of the Shares, on
and after the second anniversary of the Date of Grant;
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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 20% 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.
2.2 The unexercised portion of the Option (both vested and
non-vested) shall automatically and without notice terminate and become null
and void on the day immediately preceeding the tenth anniversary of the Date of
Grant.
2.3 Subject to Section 2.2, the Board of Directors of the
Company or any committee thereof referred to in Section 13 may cause the Option
to become immediately exercisable in such circumstances as such board or
committee may determine in its sole discretion.
3. Method of Exercise of Option. The Option may be exercised by the
Foundation as to all or (at the Foundation'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). 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
the Foundation, at the Company's 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. The Option
Price and any required withholding taxes shall be paid in cash, certified check
or bank draft, in fully paid shares of Common Stock, or by withholding Shares
issuable upon such exercise, or any combination thereof, as the Foundation may
elect. If the Foundation elects to make any such payment or tax withholding by
delivery or withholding of shares of Common Stock, such shares shall be valued
for this purpose at the closing market price on the date of exercise.
4. Option Price. Subject to adjustment as provided in Section 8,
the purchase price of the Shares covered by this Agreement shall be $48.00 per
share.
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5. Non-Transferability of Option. The Option shall not be
transferable, except by operation of law or to a successor or assignee of all
or substantially all of the assets or operations of the Foundation. 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 Company's Board
of Directors or any committee thereof referred to in Section 13 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. Subject to Section 8, the
holder of the Option shall not have any rights to dividends nor any other
rights of a stockholder as to the Shares covered 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. Restrictions on Exercise and on Common Stock.
7.1 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.
7.2 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 such sale
may be effected pursuant to an exemption from the registration requirements of
the 1933 Act. It shall be a further condition to the Company's obligation to
issue and deliver to the Foundation certificates for those Shares, that the
Foundation deliver to the Company in writing a representation that the
Foundation is exercising such Option for its own account for investment only
and not with a view to distribution and that the Foundation 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.
The Foundation 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.
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8. Adjustment.
8.1 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 Directors or any committee thereof referred to in
Section 13, as the case may be (whose good faith determination shall be
absolute and binding upon the Foundation), 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 that shall substantially
affect the rights of holders of Common Stock. The Board of Directors or such
committee, 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).
8.2 In the event of a change in the presently authorized 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.
9. 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 Senior Executive Vice President - Finance and Administration,
with a copy to the General Counsel. Each notice to the Foundation shall be
addressed to the Foundation at its principal office, attention of the
President. Any party 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.
10. Benefits of Agreement. This Agreement shall be binding upon each
successor of the Company and inure to the benefit of each successor of the
Foundation.
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11. Source of Ricgts. This Agreement shall be the sole and exclusive
source of any and all rights that the Foundation and its successors may have in
respect of the Option as granted hereunder.
12. Captions. The captions contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
13. Administration; Interpretation. This Agreement and the Option
shall be administered by the Board of Directors of the Company or by a duly
authorized committee thereof. The good faith interpretation and construction
by the Board of Directors or by such committee of any provision of this
Agreement shall be final and conclusive and binding on the parties hereto.
14. Further Assurances. Each of the Company and the Foundation shall
do and perform all such further acts and things and execute and deliver all
such other certificates, instruments and/or documents as the other party hereto
may, at any time and from time to time, reasonably request in connection with
the performance of any of the provisions of this Agreement.
15. 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 conflict 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.
MEDCO CONTAINMENT SERVICES, INC.
By:
---------------------------------
Name:
Title:
MEDCO CONTAINMENT SERVICES
FOUNDATION, INC.
By: /s/ CHARLES A. MELE
---------------------------------
Name:
Title:
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EXHIBIT 5
Merck & Co., Inc.
One Merck Drive
P.O. Box 100
Whitehouse Station, NJ 08889-0100
[MERCK L O G O]
January 25, 1995
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 Assistant
General Counsel of the Company, in connection with the Registration Statement
on Form S-3 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933 (the "Act")
with respect to 459,720 shares of common stock, no par value, of the Company
(the "Shares") to be delivered in accordance with the provisions of the option
agreements covered by the Registration Statement (the "Agreements").
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 Agreements, 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
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Bert I. Weinstein
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-3 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
/s/ ARTHUR ANDERSEN LLP
-----------------------
ARTHUR ANDERSEN LLP
New York, New York
January 25, 1995
