<PAGE> 1
As filed with the Securities and Exchange Commission on March 14, 1997
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.)
SYSTEMED, INC. 1993 EMPLOYEE STOCK OPTION PLAN
SYSTEMED, INC. 1993 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
SYSTEMED, INC. NONQUALIFIED STOCK OPTION PLAN - 1986
STOCK OPTION AGREEMENTS DATED DECEMBER 15, 1993 AND
APRIL 28, 1996 WITH JOHN F. FLOOD, JR.
WARRANT AGREEMENT DATED DECEMBER 20, 1991 WITH SUTRO
& CO.
(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> <C> <C> <C>
Common Stock (no Par Value) 145,080 shares $92.875 $13,474,305 $4,084
- --------------------------------------- ---------------------- ------------------- ------------------- -------------
</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 March 7, 1997.
<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, filed March 20, 1996 for the fiscal year
ended December 31, 1995;
(b) Quarterly Report on Form 10-Q filed on May 14, 1996 for the quarter
ended March 31, 1996;
(c) Form 10-K/A filed on June 24, 1996, amending the registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995;
(d) Quarterly Report on Form 10-Q filed on August 13, 1996 for the quarter
ended June 30, 1996;
(e) Quarterly Report on Form 10-Q filed on November 12, 1996 for the
quarter ended September 30, 1996;
(f) Current Report on Form 8-K filed on December 23, 1996;
(g) Proxy Statement for the Annual Meeting of Stockholders held on April
23, 1996; and
(h) 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.
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<PAGE> 3
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 14 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
Bert I. Weinstein, Assistant General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power to indemnify a director or officer against his or her
expenses and liabilities in connection with any proceeding involving the
director or officer by reason of his or her being or having been such a director
or officer, other than a proceeding by or in the right of the corporation, if
such a director or officer acted in good faith and in a manner he or she
reasonably believed to be in or
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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.
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.
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The By-Laws of the Company provide that a former, present or future
director, officer or employee of the Company or the legal representative of any
such director, officer or employee shall be indemnified by the Company:
(a) against reasonable costs, disbursements and counsel fees
paid or incurred where such person has been successful in the defense
on the merits or otherwise of any pending, threatened or completed
civil, criminal, administrative or arbitrative action, suit or
proceeding, and any appeal therein and any inquiry or investigation
which could lead to such action, suit, or proceeding or in defense of
any claim, issue or matter therein, brought by reason of such person's
being or having been such director, officer or employee, and
(b) with respect to the defense of any such action, suit,
proceeding, inquiry or investigation for which indemnification is not
made under (a) above, against reasonable costs, disbursements (which
shall include amounts paid in satisfaction of settlements, judgments,
fines and penalties, exclusive, however, of any amount paid or payable
to the Company) and counsel fees if such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to
the best interests of the Company, and in connection with any criminal
proceedings such person also had no reasonable cause to believe the
conduct was unlawful, with the determination as to whether the
applicable standard of conduct was met to be made by a majority of the
members of the Board of Directors (sitting as a Committee of the Board)
who were not parties to such inquiry, investigation, action, suit or
proceeding or by any one or more disinterested
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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.
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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 Bert I. Weinstein, Filed with this Registration Statement
Assistant General Counsel of registrant
23 --Consent of Arthur Andersen LLP Included at Page 13 of this Registration
Statement
24 -- Certified Resolution of Board of Directors and Filed with this Registration Statement
Power of Attorney
</TABLE>
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
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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 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
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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 duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder
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duly authorized, in the City of New York and the State of New York on the 17th
day of December, 1996.
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> <C>
*
- -------------------------
Raymond V. Gilmartin Chairman of the Board, President and December 17, 1996
Chief Executive
Officer; Principal Executive
Officer; Director
*
- -------------------------
Judy C. Lewent Senior Vice President and Chief December 17, 1996
Financial Officer; Principal
Financial Officer
*
- -------------------------
Peter E. Nugent Vice President, Controller; Principal December 17, 1996
Accounting Officer
</TABLE>
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<TABLE>
<S> <C> <C>
*
- -------------------------
H. Brewster Atwater, Jr. Director December 17, 1996
*
- -------------------------
Derek Birkin Director December 17, 1996
*
- -------------------------
Lawrence A. Bossidy Director December 17, 1996
*
- -------------------------
William G. Bowen Director December 17, 1996
*
- -------------------------
Carolyne K. Davis Director December 17, 1996
*
- -------------------------
Lloyd C. Elam Director December 17, 1996
*
- -------------------------
Charles E. Exley Director December 17, 1996
*
- -------------------------
William N. Kelley Director December 17, 1996
*
- -------------------------
Samuel O. Thier Director December 17, 1996
*
- -------------------------
Dennis Weatherstone Director December 17, 1996
</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
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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 Form S-8 Registration Statement of our report
dated January 23, 1996 included in and incorporated by reference in Merck & Co.,
Inc.'s Annual Report on Form 10-K, for the fiscal year ended December 31, 1995,
as amended by Form 10-K/A dated June 24, 1996 and to all references to our Firm
included in or made a part of this Registration Statement.
ARTHUR ANDERSEN LLP
New York, N.Y.
December 17, 1996
13
<PAGE> 14
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-K
of the registrant (May 6, 1992) 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-K
effective June 9, 1994) Annual Report for the fiscal year ended
December 31, 1994
5 --Opinion and Consent of Bert I. Filed with this Registration Statement
Weinstein, Assistant General Counsel of
registrant
23 --Consent of Arthur Andersen LLP Included at Page 13 of this Registration
Statement
24 --Certified Resolution of Board of Filed with this Registration Statement
Directors and Power of Attorney
- ------------------------------ ------------------------------------------ ----------------------------------------
</TABLE>
14
<PAGE> 1
EXHIBIT 5
December 17, 1996
Board of Directors
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, NJ 08889-0100
Re: Merck & Co., Inc. - Common Stock
Ladies and Gentlemen:
I am the Assistant General Counsel of Merck & Co., Inc., a New
Jersey corporation (the "Corporation"), and in such capacity have acted as
counsel for the Corporation in connection with the proposed registration under
the Securities Act of 1933, as amended, of up to 145,080 shares of the Common
Stock, no par value (the "Shares"), of the Corporation, which may be issued by
the Corporation pursuant to the Systemed, Inc. 1993 Employee Stock Option Plan,
Systemed, Inc. 1993 NonEmployee Director Stock Option Plan, Systemed, Inc.
NonQualified Stock Option Plan - 1986, Stock Option Agreements dated December
15, 1993 and April 28, 1996 with John F. Flood, Jr. and Warrant Agreement dated
December 20, 1991 with Sutro & Co., or any successor plans thereto, as such
plans or successor plans may be amended from time to time. I have examined such
corporate records and other documents, including the Registration Statement on
Form S-8 relating to the Shares, and have reviewed such matters of law as I have
deemed necessary for this opinion.
I am admitted to the bars of the state of New York and the
District of Columbia. The opinions expressed herein are limited in all respects
to the federal laws of the United States of America, the laws of the state of
New York, and the Business Corporation Act of the state of New Jersey.
On the basis of the foregoing examination and review, I advise
you that, in my opinion:
1. The Corporation is a corporation duly organized and
existing under the laws of the state of New Jersey.
2. All necessary corporate action on the part of the
Corporation has been taken to authorize the issuance
of the Shares, and, when issued as described in the
Registration Statement, the Shares will be legally
and validly issued, fully paid, and nonassessable.
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<PAGE> 2
The opinions expressed herein are rendered only to you and are
solely for your benefit and may not be relied upon by any person, firm, or
corporation for any reason without my prior written consent.
I consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent I do not admit that I am in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933 or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Bert I Weinstein
-------------------------
Bert I. Weinstein
16
<PAGE> 1
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 December 17, 1996, at a meeting of the Directors of said Corporation
held in the City of New York, State of New York, 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 Stock Option Agreements dated December 15,
1993 and April 28, 1996 with John F. Flood and the Warrant Agreement
dated December 20, 1991 with Sutro & Co., (collectively, the "Option
Agreements") are hereby adopted in the form presented to this meeting;
RESOLVED, that the Systemed, Inc. 1993 Employee Stock Option
Plan, the Systemed, Inc. 1993 NonEmployee Director Stock Option Plan
and the Systemed, Inc. NonQualified Stock Option Plan - 1986
(collectively, the "Option Plans") are hereby adopted in the forms
presented to this meeting; provided, however, that such approval is
subject to and contingent upon each such Option Plan being amended to
provide (i) that such plan be administered and amended by the
Compensation and Benefits Committee of the Board of Directors of Merck
& Co., Inc. with respect to persons subject to Section 16 (b) of the
Securities Exchange Act of 1934, (ii) that such plan be administered
and amended with respect to persons who are not subject to Section 16
(b) of the Securities Exchange Act of 1934 by the Chief Executive
Officer of Merck & Co., Inc. (the "Company") (iii) that the Chief
Executive Officer of the Company may delegate such administration and
right to amend to those persons that he or she deems appropriate and
(iv) that no option may be granted under such plan to any person on or
after the date hereof;
RESOLVED, that the proper officers of the Company are hereby
authorized and directed on behalf of the Company to prepare, execute
and file with the Securities and Exchange Commission (the "SEC")
Registration Statements and any and all amendments thereto, and any and
all exhibits and other documents relating thereto or required by law or
17
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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 Option Agreements and Option Plans
(collectively, 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
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 17th day of December, 1996.
/s/ Dolores O. Rosinski
---------------------------
Dolores O. Rosinski
[Corporate Seal] 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
17th day of December, 1996.
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 Senior Vice President and Chief Financial Officer
- ----------------------- (Principal Financial Officer)
Judy C. Lewent
/s/ Peter E. Nugent Vice President, Controller
- ----------------------- (Principal Accounting Officer)
Peter E. Nugent
DIRECTORS
/s/ H. Brewster Atwater, Jr. /s/ Lloyd C. Elam
- ---------------------------- ------------------------
H. Brewster Atwater, Jr. Lloyd C. Elam
/s/ Derek Birkin /s/ Charles E. Exley
- ---------------------------- ------------------------
Derek Birkin Charles E. Exley
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<PAGE> 4
/s/ Lawrence A. Bossidy /s/ William N. Kelley
- ---------------------------- ------------------------
Lawrence A. Bossidy William N. Kelley
/s/ William G. Bowen /s/ Samuel O. Thier
- ---------------------------- ------------------------
William G. Bowen Samuel O. Thier
/s/ Carolyne K. Davis /s/ Dennis Weatherstone
- ---------------------------- ------------------------
Carolyne K. Davis Dennis Weatherstone
20
