<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.)
MERCK-MEDCO MANAGED CARE, L.L.C.
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
CELIA A. COLBERT
Vice President, 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 aggregate fee
price offering
per share** price**
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (no Par Value) 800,000 shares $92.875 $74,300,000 $22,516
- --------------------------------------------------------------------------------------------------
</TABLE>
* Estimated maximum number of shares of Common Stock of Merck & Co. Inc.
issuable during the next four years of operation of the Plan.
** 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.
In addition, pursuant to Rule 416 (c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<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
Securities Exchange Act of 1934
2
<PAGE> 3
("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 and interests in the plan will be passed
upon for the Company by Kenneth C. Frazier, Vice President and Assistant General
Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power to indemnify a director or officer against his or her
expenses and liabilities in connection with any proceeding involving the
director or officer by reason of his or her being or having been such a director
or officer, other than a proceeding by or in the right of the corporation, if
such a
3
<PAGE> 4
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.
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.
4
<PAGE> 5
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
5
<PAGE> 6
counsel to whom the question may be referred by the Board of Directors;
provided, however, in connection with any proceeding by or in the right of
the Company, no indemnification shall be provided as to any person
adjudged by any court to be liable to the Company except as and to the
extent determined by such court.
The Company enters into indemnification agreements with its directors and
officers and enters into insurance agreements on its own behalf. The
indemnification agreements provide that the Company agrees to hold harmless and
indemnify its directors and officers to the fullest extent authorized or
permitted by the Business Corporation Act of the State of New Jersey, or any
other applicable law, or by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification that is adopted after the date
hereof. Without limiting the generality of the foregoing, the Company agrees to
hold harmless and indemnify its directors and officers to the fullest extent
permitted by applicable law against any and all expenses, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by its directors and
officers in connection with the defense of any present or future threatened,
pending, or completed claim, action, suit, or proceeding by reason of the fact
that they were, are, shall be, or shall have been a director or officer of the
Company, or are or were serving, shall serve, or shall have served, at the
request of the Company, as director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
6
<PAGE> 7
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description Method of Filing
- ------- ----------- ----------------
Number
- ------
<S> <C> <C>
4(a) --Restated Certificate of Incorporated by reference to
Incorporation of the registrant Form 10-K Annual Report for
(May 6, 1992) the fiscal year ended
December 31, 1992
4(b) --By-Laws of the registrant (as Incorporated by reference to
amended effective June 9, 1994) Form 10-K Annual Report for
the fiscal year ended
December 31, 1994
5 --Opinion and Consent of Kenneth Filed with this Registration
C. Frazier, Vice President and Statement
Assistant General Counsel of
registrant
23 --Consent of Arthur Andersen LLP Included at Page 12 of this
Registration Statement
24 -- Certified Resolution of Board Filed with this Registration
of Directors and Power of Attorney Statement
</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 to the plan of distribution
not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
7
<PAGE> 8
(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 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
8
<PAGE> 9
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 registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of New York and the State of New York on the 25th day of
February, 1997.
Merck & Co., Inc.
By *
--------------------------
Raymond V. Gilmartin
(Chairman of the Board,
President and Chief Executive
Officer)
By /s/Celia A. Colbert
-------------------------
Celia A. Colbert
(Vice President, Secretary and
Assistant General Counsel)
(Attorney-in-Fact)
9
<PAGE> 10
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, February 25, 1997
President and Chief
Executive Officer;
Principal Executive
Officer; Director
*
- ------------------------
Judy C. Lewent Senior Vice President and February 25, 1997
Chief Financial Officer;
Principal Financial
Officer
*
- ------------------------
Peter E. Nugent Vice President, February 25, 1997
Controller; Principal
Accounting Officer
*
- ------------------------
H. Brewster Atwater, Jr. Director February 25, 1997
*
- ------------------------
Derek Birkin Director February 25, 1997
*
- ------------------------
Lawrence A. Bossidy Director February 25, 1997
* Director February 25, 1997
- ------------------------
William G. Bowen
*
- ------------------------
Johnnetta B. Cole Director February 25, 1997
*
- ------------------------
Lloyd C. Elam Director February 25, 1997
</TABLE>
10
<PAGE> 11
<TABLE>
<CAPTION>
<S> <C> <C>
*
- ------------------------
Charles E. Exley Director February 25, 1997
*
- ------------------------
William N. Kelley Director February 25, 1997
*
- ------------------------
Edward M. Scolnick Director February 25, 1997
*
- ------------------------
Samuel O. Thier Director February 25, 1997
</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
(Vice President, Secretary and
Assistant General Counsel)
(Attorney-in-Fact)
11
<PAGE> 12
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.
February 25, 1997
12
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
EXHIBIT NUMBER DESCRIPTION METHOD OF FILING
- --------------------------------------------------------------------------------
<S> <C> <C>
4(a) --Restated Certificate of Incorporated by reference
Incorporation of the to Form 10-K Annual Report
registrant (May 6, 1992) for the fiscal year ended
December 31, 1992
4(b) --By-Laws of the registrant Incorporated by reference
(as amended effective June to Form 10-K Annual Report
9, 1994) for the fiscal year ended
December 31, 1994
5 --Opinion and Consent of Filed with this
Kenneth C. Frazier, Vice Registration Statement
President and Assistant
General Counsel of registrant
23 --Consent of Arthur Andersen Included at Page 12 of this
LLP Registration Statement
24 --Certified Resolution of Filed with this
Board of Directors and Power Registration Statement
of Attorney
- --------------------------------------------------------------------------------
</TABLE>
13
<PAGE> 1
EXHIBIT 5
February 25, 1997
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 a Vice President and 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 800,000
shares of the Common Stock, no par value (the "Shares"), of the Corporation,
which may be issued by the Corporation and the plan interests registered
pursuant to the Merck-Medco Managed Care, L.L.C. 1997 Employee Stock Purchase
Plan, 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 Commonwealth of Pennsylvania. The
opinions expressed herein are limited in all respects to the federal laws of the
United States of America, the laws of the Commonwealth of Pennsylvania, 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.
3. The interests covered by the Registration Statement will be
valid and binding interests in the Plan.
14
<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/ Kenneth C. Frazier
---------------------------------
Kenneth C. Frazier
15
<PAGE> 1
EXHIBIT 24
CERTIFIED RESOLUTION OF
BOARD OF DIRECTORS
I, Dolores O. Rosinski, Senior Assistant Secretary of Merck & Co., Inc., a
Company 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
February 25, 1997, at a meeting of the Directors of said Company held in the
City of New York, State of New York, duly called in accordance with the
provisions of the By-Laws of said Company, and at which a quorum of Directors
was present:
RESOLVED, that the proper officers of the Company are hereby
authorized and directed on behalf of the Company to prepare, execute and
file with the Securities and Exchange Commission (the "SEC") 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 issued by
the Company and an indeterminate amount of plan interests, which may be
offered or sold to participants under the Merck-Medco Managed Care, L.L.C.
1997 Employee Stock Purchase Plan (the "Plan"), such Plan having been
adopted by the Compensation and Benefits Committee of the Board of
Directors of the Company effective December 29, 1996;
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
16
<PAGE> 2
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
Plan; 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 25th day of February, 1997.
/s/ Dolores O. Rosinski
--------------------------------
Dolores O. Rosinski
[Corporate Seal] Senior Assistant Secretary
17
<PAGE> 3
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), a Registration Statement in connection with the
registration under the Securities Act of 1933, as amended, of shares of Common
Stock of Merck & Co., Inc. and an indeterminate amount of interests in the plan
which may be offered or sold pursuant to the plan covered by this Registration
Statement, including any amendments thereto and all other documents in
connection therewith.
IN WITNESS WHEREOF, this instrument has been duly executed as of the 25th
day of February, 1997.
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
18
<PAGE> 4
/s/ Lawrence A. Bossidy /s/ William N. Kelley
- ---------------------------- -------------------------
Lawrence A. Bossidy William N. Kelley
/s/ William G. Bowen /s/ Edward M. Scolnick
- ---------------------------- -------------------------
William G. Bowen Edward M. Scolnick
/s/ Johnnetta B. Cole /s/ Samuel O. Thier
- ---------------------------- -------------------------
Johnnetta B. Cole Samuel O. Thier
19
