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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 25, 1997
REGISTRATION NO. 333-
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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)
<TABLE>
<S> <C>
NEW JERSEY 22-1109110
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
P.O. BOX 100
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889
(908) 423-1000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CELIA A. COLBERT
VICE PRESIDENT AND SECRETARY
MERCK & CO., INC.
P.O. BOX 100
ONE MERCK DRIVE
WHITEHOUSE STATION, NEW JERSEY 08889
(908) 423-1000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
KENNETH C. FRAZIER, ESQ. ANN B. FISHER, ESQ.
MERCK & CO., INC. SULLIVAN & CROMWELL
P.O. BOX 100 125 BROAD STREET
ONE MERCK DRIVE NEW YORK, NEW YORK 10004
WHITEHOUSE STATION, NEW JERSEY 08889
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement, as determined in
light of market conditions.
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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2)(3) PRICE(2)(3) FEE(4)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities............................. $1,500,000,000 100% $1,500,000,000 $454,545
================================================================================================================
</TABLE>
(1) If any Debt Securities are issued (i) at an original issue discount, such
greater principal amount as shall result in an aggregate offering price
equal to $1,500,000,000 or (ii) with a principal amount denominated in a
foreign or composite currency, such principal amount as shall result in an
aggregate offering price equivalent to $1,500,000,000 at the time of the
offering.
(2) Estimated solely for the purposes of computing the registration fee.
(3) Excluding accrued interest and accrued amortization of discount, if any, to
the date of delivery.
(4) Pursuant to Rule 429, $170,000,000 of debt securities are being carried
forward from Registration Statement No. 33-60322 for sale under the
Prospectus filed herewith. A registration fee of $53,125 was paid with
respect to such debt securities.
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 1993 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
PURSUANT TO RULE 429, THE PROSPECTUS CONTAINED IN THIS REGISTRATION
STATEMENT ALSO RELATES TO $170,000,000 OF UNISSUED DEBT SECURITIES REGISTERED
UNDER FORM S-3 REGISTRATION STATEMENT NO. 33-60322.
================================================================================
<PAGE> 2
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 SUCH STATE.
SUBJECT TO COMPLETION, DATED SEPTEMBER , 1997
PROSPECTUS
$1,670,000,000
[LOGO] MERCK & CO., INC.
DEBT SECURITIES
------------------------
Merck & Co., Inc. (the "Company") may offer from time to time in one or
more series its debt securities (the "Debt Securities") at an aggregate initial
offering price not to exceed $1,670,000,000 (or its equivalent in foreign
currencies or currency units). The Company will offer Debt Securities to the
public on terms determined by market conditions.
------------------------
The accompanying Prospectus Supplement sets forth the specific designation,
aggregate principal amount, purchase price, maturity, interest rate (or manner
of calculation thereof), time of payment of interest (if any), listing (if any)
on a securities exchange, the form of the Debt Securities (which may be in
registered form or book-entry form) and any other specific terms of the Debt
Securities and the name of and compensation to each dealer, underwriter, or
agent (if any) involved in the sale of the Debt Securities covered by the
Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
Debt Securities may be offered through dealers, through underwriters, or
through agents designated from time to time, as set forth in the Prospectus
Supplement, and Debt Securities may be offered to other purchasers directly or
through agents. Net proceeds to the Company will be the purchase price in the
case of a purchaser or dealer, the public offering price less discount in the
case of an underwriter, or the purchase price less commission in the case of an
agent -- in each case, less other expenses attributable to issuance and
distribution. See "Plan of Distribution" for possible indemnification
arrangements for dealers, underwriters, and agents.
------------------------
This Prospectus may not be used to consummate the sale of any Securities
unless accompanied by a Prospectus Supplement.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT 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 THE COMPANY
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 OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER IMPLIES THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY 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
The Company 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
Securities and Exchange Commission (the "Commission").
All such reports, proxy statements and other information, including the
documents incorporated by reference herein, can be inspected and copied at
prescribed rates at the public reference facilities maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices at 7 World Trade Center, 13th floor, New York, New York 10048,
and 1400 Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Certain of such reports, proxy statements and other information are also
available over the Internet at http://www.sec.gov. Such material can also be
inspected at the office of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, and at the office of the Philadelphia Stock Exchange, 1900
Market Street, Philadelphia, Pennsylvania 19130.
The Company 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.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company (Exchange Act File No. 1-3305)
with the Commission are hereby incorporated by reference into this Prospectus:
(a) Annual Report on Form 10-K, filed March 19, 1997, for the fiscal
year ended December 31, 1996.
(b) Quarterly Report on Form 10-Q, filed on May 13, 1997, for the
quarter ended March 31, 1997.
(c) Current Report on Form 8-K, filed May 15, 1997.
(d) Quarterly Report on Form 10-Q, filed August 13, 1997, for the
quarter ended June 30, 1997.
All documents filed by the Company 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 of the Debt Securities hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part of this
Prospectus from the date of filing of such document.
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
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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.
The Company 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 into the information that the
Registration Statement incorporates). 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 (800)
613-2104.
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THE COMPANY
The Company is a leading research-driven pharmaceutical company that
discovers, develops, manufactures and markets a broad range of human and animal
health products and services.
Human health products include therapeutic and preventive agents, generally
sold by prescription, for the treatment of human disorders. Among these are
elevated cholesterol products, hypertension/heart failure products,
anti-ulcerants, antibiotics, opthalmologicals, vaccines/biologicals, benign
prostatic hyperplasia products, osteoporosis products, an HIV protease
inhibitor, anti-inflammatories/analgesics, psychotherapeutics and a muscle
relaxant. The Company also provides human health services, principally managed
prescription drug programs.
A portion of the Company's human health products business is conducted
through joint ventures, including joint ventures with Astra AB, Johnson &
Johnson, E.I. DuPont de Nemours and Company, Pasteur-Merieux Connaught and
American Home Products Corporation.
Through a joint venture with Rhone-Poulenc, the Company also conducts an
animal health and poultry genetics business. The joint venture, which is equally
owned by the Company and Rhone-Poulenc, conducts the Company's and Rhone
Poulenc's former animal health and poultry genetics businesses. Animal health
products include medicinals used to control and alleviate disease in livestock,
small animals and poultry. These products are primarily antiparasitics and also
include coccidiostats for the treatment of poultry diseases. The poultry
genetics business products include poultry breeding stock selected for increased
or improved meat or egg production.
The Company was incorporated in the State of New Jersey in 1927 and
maintains its principal offices at Whitehouse Station, New Jersey. The Company's
address is P.O. Box 100, One Merck Drive, Whitehouse Station, New Jersey
08889-0100 and its telephone number is (908) 423-1000.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes, including the reduction of short-term debt. Funds
not required immediately for such purposes may be invested temporarily in
short-term marketable securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the indicated periods:
<TABLE>
<CAPTION>
SIX
MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, ----------------------------------------
1997 1996 1995 1994 1993 1992
-------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 29 23 38 28 27 34
</TABLE>
For purposes of computing these ratios, "earnings" consist of income before
income taxes, cumulative effect of accounting changes, one-third of rents
(deemed by the Company to be representative of the interest factor inherent in
rents), interest expense, net of amounts capitalized, and dividends on preferred
stock of subsidiary companies. "Fixed charges" consist of one-third of rents,
interest expense as reported in the Company's consolidated financial statements
and dividends on preferred stock of subsidiary companies.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under the Indenture dated as of April
1, 1991, as amended and supplemented (the "Indenture"), between the Company and
First Trust of New York, National Association,
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as Trustee (the "Trustee"), a copy of which is filed (or incorporated by
reference) as an exhibit to the Registration Statement. The following summaries
of certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain terms.
Wherever particular Sections or defined terms of the Indenture are referred to,
such Sections or defined terms are incorporated herein by reference.
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. The particular terms of the Debt Securities offered
by any Prospectus Supplement (the "Offered Debt Securities") will be described
in the Prospectus Supplement relating to such Offered Debt Securities (the
"Applicable Prospectus Supplement").
GENERAL
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and Debt Securities may be issued thereunder from time to time
in one or more series. The Debt Securities will be unsecured and unsubordinated
obligations of the Company and will rank equally and ratably with other
unsecured and unsubordinated obligations of the Company.
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Debt Securities will be
payable, and the transfer of Debt Securities will be registrable, at the office
or agency to be maintained by the Company in The City of New York and at any
other office or agency maintained by the Company for such purpose. (Sections
301, 305 and 1002) The Debt Securities will be issued only in fully registered
form without coupons and, unless otherwise indicated in the Applicable
Prospectus Supplement, in denominations of $1,000 or integral multiples thereof.
(Section 302) No service charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith. (Section 305)
The Applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (1) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities; (3)
the Person to whom any interest on the Offered Debt Securities shall be payable,
if other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest; (4) the date or dates on which the principal of the Offered
Debt Securities is payable; (5) the rate or rates at which the Offered Debt
Securities shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for the interest payable on any
Interest Payment Date; (6) the place or places where the principal of and any
premium and interest on the Offered Debt Securities shall be payable; (7) the
period or periods within which, the price or prices at which and the terms and
conditions upon which the Offered Debt Securities may be redeemed, in whole or
in part, at the option of the Company; (8) the obligation, if any, of the
Company to redeem or purchase the Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the terms
and conditions upon which the Offered Debt Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation; (9) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Debt Securities shall be issuable; (10) the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on any Offered Debt Securities shall be payable if other
than the currency of the United States of America; (11) if the amount of
payments of principal of or any premium or interest on any Offered Debt
Securities may be determined with reference to an index or formula, the manner
in which such amounts shall be determined; (12) if the principal of or any
premium or interest on any Offered Debt Securities is to be payable, at the
election of the Company or a Holder thereof, in one or more currencies or
currency units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of the
principal of and any premium and interest on the Offered Debt Securities as to
which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made; (13) if other
than the principal amount thereof, the portion of the principal amount of the
Offered Debt Securities which shall be payable upon
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declaration of acceleration of the Maturity thereof; (14) the applicability of
the provisions described under "Defeasance and Covenant Defeasance"; (15) if the
Offered Debt Securities will be issuable only in the form of a Book-Entry
Security as described under "Book-Entry Debt Securities," the Depository or its
nominee with respect to the Offered Debt Securities and the circumstances under
which the Book-Entry Security may be registered for transfer or exchange or
authenticated and delivered in the name of a Person other than the Depository or
its nominee; and (16) any other terms of the Offered Debt Securities. (Section
301)
The Debt Securities may be issued as Original Issue Discount Debt
Securities to be offered and sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to Original Issue Discount Debt Securities and any
Debt Securities treated as having been issued with original issue discount for
Federal income tax purposes will be described in the Applicable Prospectus
Supplement. "Original Issue Discount Debt Securities" means any Debt Security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the Maturity thereof upon
the occurrence of an Event of Default and the continuation thereof. (Section
101)
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Book-Entry Securities that will be deposited with a Depository or its nominee
identified in the Applicable Prospectus Supplement. In such a case, one or more
Book-Entry Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
Outstanding Debt Securities of the series to be represented by such Book-Entry
Security or Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive registered form, a Book-Entry Security may not be
registered for transfer or exchange except as a whole by the Depository for such
Book-Entry Security to a nominee or such Depository and except in the
circumstances described in the Applicable Prospectus Supplement. (Sections 204
and 305)
The specific terms of the depository arrangement with respect to any
portion of a series of Debt Securities to be represented by a Book-Entry
Security will be described in the Applicable Prospectus Supplement.
CERTAIN COVENANTS OF THE COMPANY
Subsidiaries. The term "Subsidiary" is defined in the Indenture as a
corporation more than 50% of the outstanding stock of which is owned directly or
indirectly by the Company and/or one or more Subsidiaries. The term "Domestic
Subsidiary" is defined in the Indenture as a Subsidiary substantially all the
fixed assets of which are located, or substantially all the business of which is
carried on, within the United States (including Puerto Rico), or which owns or
leases any Principal Domestic Manufacturing Property, but such term excludes any
Subsidiary the principal business of which is the financing of the operations of
the Company or its Subsidiaries outside the United States (including Puerto
Rico) (but such Subsidiary is excluded only so long as it neither owns nor
leases any Principal Domestic Manufacturing Property). (Section 101)
Restrictions on Secured Debt. The Indenture provides that if the Company
or any Domestic Subsidiary shall incur, issue, assume or guarantee any Debt
secured by a Mortgage on any Principal Domestic Manufacturing Property of the
Company or any Domestic Subsidiary or on any shares of stock or Debt of any
Domestic Subsidiary, the Company will secure, or cause such Domestic Subsidiary
to secure, the Outstanding Debt Securities equally and ratably with (or prior
to) such secured Debt, unless after giving effect thereto the aggregate amount
of all such secured Debt together with all Attributable Debt of the Company and
of any Domestic Subsidiary in respect of sale and leaseback transactions
involving Principal Domestic Manufacturing Properties would not exceed 10% of
the Consolidated Net Tangible Assets of the Company and its consolidated
Subsidiaries. For the purpose of providing such equal and ratable security, the
principal amount of Outstanding Debt Securities of any series of Original Issue
Discount Securities shall be such portion of the principal amount as specified
in the terms of that series that would be payable upon acceleration of the
Maturity thereof at the time of such determination. This restriction will not
apply to, and there shall be excluded in computing secured Debt for the purpose
of such restriction, Debt secured by (a) Mortgages on property of, or on any
shares of stock or Debt of, any corporation existing at the time such
corporation
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becomes a Domestic Subsidiary, (b) Mortgages in favor of the Company or a
Domestic Subsidiary, (c) Mortgages in favor of governmental bodies of the United
States or any State or Puerto Rico or any other country or any political
subdivision thereof to secure partial, progress or advance payments, (d)
Mortgages on property, shares of stock or Debt, purchase money Mortgages and
construction Mortgages existing at or incurred within 120 days of the time of
acquisition thereof (including acquisition through merger or consolidation), and
(e) certain extensions, renewals or replacements of Mortgages referred to in the
foregoing clauses (a) through (d) inclusive. (Section 1008) The Indenture does
not restrict the incurrence of unsecured Debt by the Company or its
Subsidiaries.
"Principal Domestic Manufacturing Property" is defined in the Indenture to
include any facility (together with the land on which it is erected and fixtures
comprising a part thereof) used primarily for manufacturing, processing or
warehousing of the Company's products and located in the United States
(including Puerto Rico), owned or leased by the Company or a Subsidiary and
having a gross book value in excess of 1% of Consolidated Net Tangible Assets,
other than any such facility or portion thereof (i) which is financed by certain
governmental obligations the interest on which is excludable from gross income
of the holder thereof pursuant to the provisions of Section 103 (a) of the
Internal Revenue Code or Section 745 of Title 48 of the United States Code or
(ii) which in the opinion of the Board of Directors of the Company is not of
material importance to the total business conducted by the Company and its
Subsidiaries as an entirety. "Consolidated Net Tangible Assets" is defined as
the aggregate amount of all assets (after deducting intangible assets and the
amount of all current liabilities) of the Company and its consolidated
Subsidiaries. "Mortgage" is defined as any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or similar
encumbrance. "Attributable Debt" is defined to mean the total net amount of rent
(discounted at the rate of 1% per annum over the weighted average Yield to
Maturity of the Outstanding Debt Securities compounded semi-annually) required
to be paid during the remaining term of any lease. (Section 101)
Restrictions on Sales and Leaseback Transactions. The Indenture provides
that neither the Company nor any Domestic Subsidiary may, after the effective
date of the Indenture, enter into any sale and leaseback transaction involving
any Principal Domestic Manufacturing Property which has been or is to be sold or
transferred, more than 120 days afer the acquisition thereof or the completion
of construction and commencement of full operations thereof, unless (a) the
Company or such Domestic Subsidiary could create Debt secured by a Mortgage on
such property as described under "Restrictions on Secured Debt" in an amount
equal to the Attributable Debt with respect to the sale and leaseback
transaction without equally and ratably securing the Outstanding Debt Securities
or (b) the Company, within 120 days, applies to the retirement of its Funded
Debt which is pari passu (as defined in the Indenture) with the Outstanding
Securities an amount equal to the greater of (i) the net proceeds of the sale of
the Principal Domestic Manufacturing Property leased pursuant to such
arrangement or (ii) the fair market value of the Principal Domestic
Manufacturing Property so leased (subject to credits for certain voluntary
retirements of Funded Debt). (Section 1009) "Funded Debt" is defined as
indebtedness for money borrowed having a maturity at or being renewable or
extendible to a date more than 12 months from the date of determination.
(Section 101) This restriction does not apply to any sale and leaseback
transaction (a) between the Company and a Subsidiary or between Subsidiaries, or
(b) involving the taking back of a lease for a period of three years or less.
(Section 1009)
Unless otherwise indicated in the Applicable Prospectus Supplement, the
Indenture does not contain covenants specifically designed to protect Holders in
the event of a highly leveraged transaction involving the Company.
EVENTS OF DEFAULT
Any one of the following events constitutes an Event of Default under the
Indenture with respect to Securities of any series: (a) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(b) failure to pay principal of or any premium on any Debt Security of that
series when due; (c) failure to deposit any sinking fund payment, when due, in
respect of any Debt Security of that series; (d) failure to perform, or breach
of, any covenant or warranty of the Company in the Indenture (other than a
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covenant included in the Indenture solely for the benefit of a series of Debt
Securities thereunder other than that series) continued for 90 days after
written notice as provided in the Indenture; (e) certain events in bankruptcy,
insolvency or reorganization of the Company; or (f) any other Event of Default
provided with respect to Debt Securities of that series. (Section 501)
If any Event of Default with respect to the Debt Securities of any series
at the time Outstanding occurs and is continuing, either the Trustee or the
Holders of at least 25 percent in aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Debt Securities of that series to be due and payable immediately. At any
time after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before a judgment or decree based on acceleration has
been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 502)
Reference is made to the Applicable Prospectus Supplement relating to any
series of Offered Debt Securities that are Original Issue Discount Debt
Securities for the particular provisions relating to acceleration of the Stated
Maturity of a portion of the principal amount of such series of Original Issue
Discount Debt Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee and to certain other
conditions, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series. (Section 512)
No Holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
a continuing Event of Default and unless the Holders of at least 25 percent in
principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of that series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for enforcement of payment of the principal of and premium, if
any, or interest on such Debt Security on or after the respective due dates
expressed in such Debt Security. (Section 508)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
issued under the Indenture and affected by the modification or amendments;
provided, however, that no such modification or amendment may, without the
consent of the Holders of all Debt Securities affected thereby, (i) change the
Stated Maturity of the principal of, or any installment of principal of or
interest on, any Debt Security, (ii) reduce the principal amount of, or the
premium, if any, or (except as otherwise provided in the Applicable Prospectus
Supplement) interest on, any Debt Security (including in the case of an Original
Issue Discount Debt Security the amount payable upon acceleration of the
Maturity thereof); (iii) change the place or currency of payment of principal
of, premium, if any, or interest on any Debt Security; (iv) impair the right to
institute suit for the enforcement of any payment on any
8
<PAGE> 10
Debt Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); or (v) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults. (Section 902)
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with certain restrictive provisions of
the Indenture. (Section 1010) The Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of any series may,
on behalf of all Holders of that series, waive any past default under the
Indenture, except a default in the payment of principal, premium or interest or
in respect of a covenant or provision of the Indenture that cannot be modified
or amended without the consent of the Holder of each Outstanding Debt Security
of such series affected thereby. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
transfer or lease its assets substantially as an entirety to any Person and may
not permit any Person to merge into or consolidate with the Company or transfer
or lease its assets substantially as an entirety to the Company, unless (i) any
successor or purchaser is a corporation, partnership, or trust organized under
the laws of the United States of America, any State or the District of Columbia,
and any such successor or purchaser expressly assumes the Company's obligations
on the Debt Securities under a supplemental Indenture, (ii) immediately after
giving effect to the transaction no Event of Default, and no event which, after
notice or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing, (iii) if properties or assets of the Company become
subject to a Mortgage not permitted by the Indenture, the Company or such
successor Person, as the case may be, takes such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby, and (iv) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel stating compliance with these
provisions. (Section 801)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, unless otherwise indicated in the Applicable
Prospectus Supplement with respect to the Offered Debt Securities, that the
Company, at the Company's option, (a) will be discharged from any and all
obligations in respect of the Debt Securities of any series (except for certain
obligations to register the transfer of or exchange of Debt Securities of such
series, replace stolen, lost or mutilated Debt Securities of such series,
maintain paying agencies and hold moneys for payment in trust) or (b) need not
comply with certain restrictive covenants of the Indenture, including those
described under "Certain Covenants", and the occurrence of an event described in
clause (e) under "Events of Default" shall no longer be an Event of Default, in
each case, if the Company deposits, in trust, with the Trustee money or U.S.
Government Obligations, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay all the principal of and interest on the Debt
Securities of such series on the dates such payments are due (which may include
one or more redemption dates designated by the Company) in accordance with the
terms of the Debt Securities of such series. Such a trust may only be
established if, among other things, (i) no Event of Default or event which with
the giving of notice or lapse of time, or both, would become an Event of Default
under the Indenture shall have occurred and be continuing on the date of such
deposit, (ii) such deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of the Company and (iii) the Company
shall have delivered an Opinion of Counsel to the effect that the Holders will
not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit or defeasance and will be subject to Federal income tax in the
same manner as if such defeasance had not occurred, which Opinion of Counsel, in
the case of clause (a) above, must refer to and be based upon a published ruling
of the Internal Revenue Service, a private ruling of the Internal Revenue
Service addressed to the Company, or otherwise a change in applicable Federal
income tax law occurring after the date of the Indenture. In the event the
Company omits to comply with its remaining obligations under the Indenture after
a defeasance of the Indenture with respect to the Debt Securities of any series
as described under clause (b) above and the Debt Securities of such series are
declared due and payable
9
<PAGE> 11
because of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations on deposit with the Trustee may be insufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company will
remain liable in respect of such payments. (Article Thirteen)
CONCERNING THE TRUSTEE
First Trust of New York, National Association, is Trustee under the
Indenture. The Trustee performs services for the Company in the ordinary course
of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby through
agents, through underwriters and through dealers, and Debt Securities may be
sold to other purchasers directly or through agents.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company, and any profit on
the resale of Debt Securities by them, may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any such underwriter or
agent will be identified, and any such compensation received from the Company
will be described, in the Applicable Prospectus Supplement.
Underwriters, dealers and agents that participate in the distribution of
the Debt Securities or their affiliates may be customers of, extend credit to or
engage in transactions with or perform services for the Company in the ordinary
course of business.
The Debt Securities are not proposed to be listed on a securities exchange,
and any underwriters or dealers will not be obligated to make a market in Debt
Securities. The Company cannot predict the activity or liquidity of any trading
in the Debt Securities.
Underwriters participating in the offering of the Debt Securities may
purchase and sell Debt Securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchasees to cover short
positions created by such underwriters in connection with the offering. Such
underwriters may also impose a penalty bid, whereby selling concessions allowed
to broker-dealers in respect of the Debt Securities sold in the offering may be
reclaimed by such underwriters if such Debt Securities are repurchased by the
underwriters in stabilizing transactions. These activities may stabilize,
maintain or otherwise affect the market price of the Debt Securities, which may
be higher than the price that might otherwise prevail in the open market; and
these activities, if commenced, may be discontinued at any time.
VALIDITY OF DEBT SECURITIES
The validity of Debt Securities offered hereby will be passed upon for the
Company by Mary M. McDonald, Esq., Senior Vice President and General Counsel of
the Company, and for any underwriters or agents by Sullivan & Cromwell, New
York, New York. Ms. McDonald and her husband beneficially own an aggregate of
35,622 shares of Common Stock and hold options to acquire 600 shares which are
exercisable within 60 days.
10
<PAGE> 12
EXPERTS
The consolidated financial statements of the Company at December 31, 1996
and 1995 and for each of the three years in the period ended December 31, 1996,
appearing in its Annual Report on Form 10-K, for the fiscal year ended December
31, 1996 and incorporated in this Prospectus by reference, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto and incorporated by reference herein. The financial
statements referred to above are included in reliance upon the reports of said
firm and upon the authority of said firm as experts in auditing and accounting.
11
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company 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.................................................. $454,545
Trustee's Fees.................................................... 35,000
Printing and Engraving............................................ 10,000
Legal Fees........................................................ 100,000
Accounting Fees................................................... 20,000
Rating Agency Fees................................................ 100,000
Blue Sky Fees and Expenses........................................ 5,000
Miscellaneous..................................................... 10,000
Total................................................... $734,545
========
</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 omissions (a) were in breach of his or her duty of loyalty to the
corporation or its shareholders, (b) were not in good faith or involved a
knowing violation of law or (c) resulted in receipt by the director or officer
of an improper personal benefit.
The Company's Restated Certificate of Incorporation provides that, to the
fullest extent permitted by the laws of the State of New Jersey, directors and
officers of the Corporation shall not be personally liable to the Corporation or
its stockholders for damages for breach of any duty owed to the Corporation or
its stockholders, except that a director or officer shall not be relieved from
liability for any breach of duty based upon an act or omission (a) in breach of
such person's duty of loyalty to the Corporation or its stockholders, (b) not in
good faith or involving a knowing violation of law or (c) resulting in receipt
by such person of an improper personal benefit.
The By-Laws of the Company provide that a former, present or future
director, officer or employee of the Company or the legal representative of any
such director, officer or employee shall be indemnified by the Company:
(a) against reasonable costs, disbursements and counsel fees paid or
incurred where such person has been successful in the defense on the merits
or otherwise of any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, brought by reason
of such person's being or having been such director, officer or employee,
and
<PAGE> 14
(b) with respect to the defense of any such action, suit, proceeding,
inquiry or investigation for which indemnification is not made under (a)
above, against reasonable costs, disbursements (which shall include amounts
paid in satisfaction of settlements, judgments, fines and penalties,
exclusive, however, of any amount paid or payable to the Company) and
counsel fees if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Company, and in connection with any criminal proceedings such person also
had no reasonable cause to believe the conduct was unlawful, with the
determination as to whether the applicable standard of conduct was met to
be made by a majority of the members of the Board of Directors (sitting as
a Committee of the Board) who were not parties to such inquiry,
investigation, action, suit or proceeding or by any one or more
disinterested counsel to whom the question may be referred by the Board of
Directors; provided, however, in connection with any proceeding by or in
the right of the Company, no indemnification shall be provided as to any
person adjudged by any court to be liable to the Company except as and to
the extent determined by such court.
The Company enters into indemnification agreements with its directors and
officers and enters into insurance agreements on its own behalf. The
indemnification agreements provide that the Company agrees to hold harmless and
indemnify its directors and officers to the fullest extent authorized or
permitted by the Business Corporation Act of the State of New Jersey, or any
other applicable law, or by any amendment thereof or other statutory provisions
authorizing or permitting such indemnification that is adopted after the date
hereof. Without limiting the generality of the foregoing, the Company agrees to
hold harmless and indemnify its directors and officers to the fullest extent
permitted by applicable law against any and all expenses, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by its directors and
officers in connection with the defense of any present or future threatened,
pending, or completed claim, action, suit, or proceeding by reason of the fact
that they were, are, shall be, or shall have been a director or officer of the
Company, or are or were serving, shall serve, or shall have served, at the
request of the Company, as a director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
A Resolution adopted by the Company's Board of Directors provides, that to
the extent permitted by applicable law and not prohibited by the Company's
Certificate of Incorporation or By-laws, the Company shall (i) indemnify and
save harmless each and every past and present director and officer of the
Company against any and all losses, claims, damages or liabilities to which such
officer or director may become subject, under the Securities Act, the Exchange
Act, any state Blue Sky or securities law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise in
connection with this Registration Statement or any amendments (including,
without limitation, post effective amendments) or supplements thereto and any
Prospectus included therein and (ii) reimburse each such director and officer
for any legal or other expenses reasonably incurred by him or her in connection
with investigating or defending any such action or claim.
II-2
<PAGE> 15
ITEM 16. EXHIBITS.
<TABLE>
<C> <S> <C> <C>
1 -- Form of Underwriting Agreement.
4 (a) -- Indenture between the Company and Morgan Guaranty Trust Company of New York, as
Trustee (incorporated herein by reference to Exhibit (4) to the Company's
Registration Statement on Form S-3 (No. 33-39349)).
4 (b) -- Form of First Supplemental Indenture between the Company and First Trust of New
York, National Association, as Trustee.
5 -- Opinion and Consent of Mary M. McDonald, Esq.
12 -- Computation of Ratio of Earnings to Fixed Charges (incorporated herein by
reference to Exhibit 12 to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1997 (File No. 1-03305)).
23 (a) -- Consent of Arthur Andersen LLP.
23 (b) -- Consent of Counsel (included in Exhibit 5).
24 -- Power of Attorney (included in the signature page hereto).
25 -- Statement of Eligibility and Qualification on Form T-1 under the Trust Indenture
Act of 1939, as amended, of First Trust of New York, National Association.
</TABLE>
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 in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or 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 provisions described under Item 15
II-3
<PAGE> 16
above 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 against the registrant 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 theretofore
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Merck & Co.,
Inc. certifies that it has reasonable grounds to believe that it meets all 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, at Whitehouse Station, State of New Jersey, on September 23, 1997.
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 and Mary M. McDonald, and each of them, as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and all documents relating thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing necessary or advisable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
/s/ RAYMOND V. GILMARTIN Chairman of the Board, President, September 23, 1997
- ------------------------------------ Chief Executive Officer and
(Raymond V. Gilmartin) Director (principal executive
officer)
/s/ JUDY C. LEWENT Senior Vice President and Chief September 23, 1997
- ------------------------------------ Financial Officer (principal
(Judy C. Lewent) financial officer)
/s/ PETER E. NUGENT Vice President and Controller September 23, 1997
- ------------------------------------ (principal accounting officer)
(Peter E. Nugent)
/s/ H. BREWSTER ATWATER, JR. Director September 23, 1997
- ------------------------------------
(H. Brewster Atwater, Jr.)
/s/ DEREK BIRKIN Director September 23, 1997
- ------------------------------------
(Derek Birkin)
/s/ LAWRENCE A. BOSSIDY Director September 23, 1997
- ------------------------------------
(Lawrence A. Bossidy)
</TABLE>
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
/s/ WILLIAM G. BOWEN Director September 23, 1997
- ------------------------------------
(William G. Bowen)
/s/ JOHNNETTA B. COLE Director September 23, 1997
- ------------------------------------
(Johnnetta B. Cole)
/s/ CAROLYNE K. DAVIS Director September 23, 1997
- ------------------------------------
(Carolyne K. Davis)
/s/ LLOYD C. ELAM Director September 23, 1997
- ------------------------------------
(Lloyd C. Elam)
/s/ CHARLES E. EXLEY, JR. Director September 23, 1997
- ------------------------------------
(Charles E. Exley, Jr.)
/s/ WILLIAM N. KELLEY Director September 23, 1997
- ------------------------------------
(William N. Kelley)
/s/ EDWARD M. SCOLNICK Director September 23, 1997
- ------------------------------------
(Edward M. Scolnick)
/s/ SAMUEL O. THIER Director September 23, 1997
- ------------------------------------
(Samuel O. Thier)
Director
- ------------------------------------
(Dennis Weatherstone)
</TABLE>
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- ----------------------------------------------------------------------------
<C> <C> <S>
1 -- Form of Underwriting Agreement.
4(b) -- Form of First Supplemental Indenture between the Company and First Trust of
New York, National Association, as Trustee.
5 -- Opinion and Consent of Mary M. McDonald, Esq.
23(a) -- Consent of Arthur Andersen LLP.
23(b) -- Consent of Counsel (included in Exhibit 5).
24 -- Power of Attorney (included in the signature page hereto).
25 -- Statement of Eligibility and Qualification on Form T-1 under the Trust
Indenture Act of 1939, as amended, of First Trust of New York, National
Association.
</TABLE>
<PAGE> 1
Exhibit 1
S&C Draft of September 11, 1997
MERCK & CO., INC.
Debt Securities
---------------
Underwriting Agreement
_________ ___, 1997
TO THE REPRESENTATIVES OF THE
SEVERAL UNDERWRITERS NAMED IN THE
RESPECTIVE PRICING AGREEMENTS
HEREINAFTER DESCRIBED.
Dear Sir or Madame:
From time to time Merck & Co., Inc., a New Jersey corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement,the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of the Company to sell any of the Securities or as
an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to
<PAGE> 2
purchase any of the Securities shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 33-60322 and
333-______ )(together, the "Initial Registration Statement") in respect of
the Securities have been filed with the Securities and Exchange Commission
(the "Commission"); such Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters, have
been declared effective by the Commission in such form; other than a
Registration Statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than the
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of
-2-
<PAGE> 3
the Commission under the Act), each in the form heretofore delivered to
the Representatives on or prior to the date hereof; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, being hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part of
the registration statement became effective but excluding Form T-1, each
as amended at the time such part of the registration statement became
effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or
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<PAGE> 4
supplemented in relation to the applicable Designated Securities in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided,
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<PAGE> 5
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any material change in the consolidated
capital stock or any material increase in the consolidated long-term debt
of the Company and its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of New Jersey, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(f) Each of the following subsidiaries of the Company: [MSD Ireland
(Holdings) S.A., Merck Sharp & Dohme (Ireland) Ltd., MSD Overseas Finance,
Merck Sharp & Dohme Quimica de Puerto Rico, Inc., Merck Sharp & Dohme
Limited, Merck Sharp & Dohme (Italia) S.p.A., Merck Sharp & Dohme B.V.,
Laboratoires Merck Sharp & Dohme - Chibret SNC, Banyu Pharmaceutical Co.,
Ltd., Financiere MSD S.A.S., MSD Overseas Manufacturing Co. and Merck
Sharp & Dohme Overseas Finance]* has been duly incorporated, and is
validly existing as a corporation in good standing under the laws of the
- --------
* Confirm which subsidiaries currently should be covered.
-5-
<PAGE> 6
jurisdiction of its incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or the ownership or leasing of its property requires such
qualification, except where failure to qualify would not have a materially
adverse effect upon the Company and its consolidated subsidiaries taken as
a whole;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and, at the Time of Delivery for such Designated
Securities (as defined in Section 4 hereof), the Indenture will constitute
a valid and legally binding instrument, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus as
amended or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the
Company or any of its subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its
-6-
<PAGE> 7
subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute, order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters; and
(i) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject, other than as
set forth in the Prospectus and other than litigation incident to the kind
of business conducted by the Company and its subsidiaries which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operation of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be
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<PAGE> 8
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer or by certified or official bank check
or checks, payable to the order of the Company (unless provided otherwise in the
Pricing Agreement) in the funds specified in such Pricing Agreement, all at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of
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<PAGE> 9
such Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus in New
York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably
-9-
<PAGE> 10
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of Delivery
and which are substantially similar to such Designated Securities, without
the prior written consent of the Representatives.
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this
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<PAGE> 11
Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section; but
the Company shall not in any event be liable to any of the Underwriters for
damages on account of loss of anticipated profits from the sale by them of the
Securities. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule
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<PAGE> 12
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Mary M. McDonald, Esq., Senior Vice President and General
Counsel to the Company (or such other person who shall be General Counsel
to the Company at such Time of Delivery), shall have furnished to the
Representatives his written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of New Jersey and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where failure to qualify would not have a
materially adverse effect upon the Company and its consolidated
subsidiaries taken as a whole;
(ii) Each of the following subsidiaries of the Company: [MSD
Ireland (Holdings) S.A., Merck Sharp & Dohme (Ireland) Ltd., MSD
Overseas Finance, Merck Sharp & Dohme Quimica de Puerto Rico, Inc.,
Merck Sharp & Dohme Limited, Merck Sharp & Dohme (Italia) S.p.A.,
Merck Sharp & Dohme B.V.,
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<PAGE> 13
Laboratoires Merck Sharp & Dohme - Chibret SNC, Banyu
Pharmaceutical Co., Ltd., Financiere MSD S.A.S., MSD Overseas
Manufacturing Co. and Merck Sharp & Dohme Overseas Finance]** has
been duly incorporated, and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of its property requires such
qualification, except where failure to qualify would not have a
materially adverse effect upon the Company and its consolidated
subsidiaries taken as a whole;
(iii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject, other than as set
forth in the Prospectus and other than litigation or proceedings
which individually are not material to the Company and its
subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or others; and such counsel has not received notice that
any such proceedings are contemplated by governmental authorities;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Designated Securities
and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and, at
- --------
** Note: Conform to Sec. 2(f).
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<PAGE> 14
the Time of Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of the Company or any of its subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-Laws of the Company or any statute, order, rule
or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
court or any such regulatory authority or other governmental body is
required for the issue and sale by the Company of the Designated
Securities or the execution and delivery and performance by the
Company of this Agreement, the Pricing Agreement or the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State
Securities or Blue Sky laws in connection with the purchase and
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<PAGE> 15
distribution of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of
such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents
were so filed, not misleading; and
(ix) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations
thereunder; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to the Time of Delivery (other
than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as
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<PAGE> 16
of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus as amended or supplemented
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not
misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively,
to the effect set forth in Annex II hereto, and with respect to such
letter dated such Time of Delivery, as to such other matters as the
Representatives
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<PAGE> 17
may reasonably request and in form and substance satisfactory to the
Representatives;
(e)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest financial statements included or
incorporated by reference in the Prospectus as amended or supplemented any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented,
and (ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
change in the consolidated capital stock (except for the issuance of
shares of common stock pursuant to the Company's savings, incentive stock
and executive incentive plans) or any increase in the consolidated
long-term debt of the Company and its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in Clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no down-grading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension of trading of the Company's Common Stock by the
Commission
-17-
<PAGE> 18
or the New York Stock Exchange precipitated by the announcement by the
Company of a material adverse event with respect to the Company's business
or financial position; (ii) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the
manner contemplated by the Prospectus as amended and supplemented; and
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
(i) The Company shall have furnished or caused to be furnished at
the Time of Delivery for the Designated Securities a certificate or
certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein
-18-
<PAGE> 19
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the
-19-
<PAGE> 20
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any
-20-
<PAGE> 21
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall
-21-
<PAGE> 22
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such
-22-
<PAGE> 23
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
-23-
<PAGE> 24
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8 (c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any
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<PAGE> 25
day when the Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
MERCK & CO., INC.
By:___________________________
Name:
Title:
Accepted as of the date hereof:
______________________________
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By:___________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:___________________________
Name:
Tile:
-25-
<PAGE> 1
Exhibit 4(b)
Draft of August 20, 1997
=======================================
MERCK & CO., INC.
TO
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
as Trustee
--------------------
First Supplemental Indenture
Dated as of ______, 1997
to
Indenture
Dated as of April 1, 1991
-----------------------
=======================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE dated as of ______, 1997 (the "First
Supplemental Indenture") between MERCK & CO., INC., a corporation duly organized
and existing under the laws of the State of New Jersey (the "Company"), having
its principal office at One Merck Drive, Whitehouse Station, New Jersey 08889
and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United States, as
Trustee (the "Trustee").
R E C I T A L S
The Company has heretofore executed and delivered to MORGAN GUARANTY
TRUST COMPANY OF NEW YORK (the "Predecessor Trustee") an Indenture, dated as of
April 1, 1991 (herein called the "Indenture") between the Company and the
Predecessor Trustee. All terms used in this First Supplemental Indenture which
are defined in the Indenture shall have the same meanings assigned to them in
the Indenture.
The Trustee is the successor to the Predecessor Trustee under the
Indenture.
Section 901(5) of the Indenture provides that, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental thereto, in form satisfactory to the Trustee, to add to,
change or eliminate any of the provisions of the Indenture in respect of one or
more series of Securities, provided that any such addition, change or
elimination (A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding.
Section 901(9) of the Indenture provides that, without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental thereto, in form satisfactory to the Trustee, to cure
any ambiguity, to correct or supplement any provision in the Indenture which may
be defective or inconsistent with any other provision therein, or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
The Company has delivered to the Trustee an Opinion of Counsel
pursuant to Sections 102 and 903 of the Indenture stating that the execution of
this First Supplemental Indenture is authorized or permitted by the Indenture.
All things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
covenants contained in this First Supplemental Indenture, the parties hereto
hereby agree, for
-1-
<PAGE> 3
the equal and proportionate benefit of all Holders of the Securities of any
series created on or after the date hereof as follows:
SECTION 1. Section 301 of the Indenture is hereby amended by
deleting Section 301(9) and inserting in its place the following:
"(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;"
SECTION 2. Section 302 of the Indenture is hereby amended by
deleting the last sentence and inserting the following in its place:
"In the absence of any such provisions with respect to the
Securities of any series created on or after the date of the First
Supplemental Indenture, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple
thereof."
SECTION 3. The provisions and benefit of this First Supplemental
Indenture shall not be effective with respect to Securities of any series
created prior to the date hereof.
SECTION 4. If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this First
Supplemental Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 5. In case any provision in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 6 . Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Securities, any benefit or
any legal or equitable right, remedy or claim under this First Supplemental
Indenture.
SECTION 7. This First Supplemental Indenture supplements the
Indenture and shall be a part and subject to all the terms thereof. Except as
supplemented hereby, the Indenture shall continue in full force and effect.
SECTION 8. This First Supplemental Indenture may be executed in any
number of counterparts, each of which as so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 9. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
-2-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
MERCK & CO., INC.
By_____________________________
Name:
Title:
Attest:
_________________________
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By_____________________________
Name:
Title:
Attest:
_________________________
-3-
<PAGE> 5
STATE OF NEW JERSEY )
) ss.:
COUNTY OF _______________ )
On the ____ day of ______, 1997 before me personally came
____________________________, to me known, who, being by me duly sworn, did
depose and say that he or she is the _______________________ of Merck & Co,
Inc., one of the corporations described in and which executed the foregoing
instrument; that he or she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he or she
signed his or her name thereto by like authority.
-------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____ __, 1997 before me personally came
_____________________________, to me known, who, being by me duly sworn, did
depose and say that he or she is _________________________ of First Trust of New
York, National Association, one of the corporations described in and which
executed the foregoing instrument; that he or she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he or she signed his or her name thereto by like
authority.
-------------------------
-4-
<PAGE> 1
Exhibit 5
MERCK & CO., INC.
ONE MERCK DRIVE
WHITEHOUSE STATION, NJ 08889-0100
September 25, 1997
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, NJ 08889-0100
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of $1,500,000,000 aggregate principal amount of debt
securities (the "Securities") of Merck & Co., Inc., a New Jersey corporation
(the "Company"), I, as Senior Vice President and General Counsel of the
Company, or attorneys under my general supervision, have examined such
corporate records, certificates and other documents and such questions of law
as I have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, I advise you that, in my opinion:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the state of New Jersey.
2. When the Registration Statement has become effective under the Act,
the terms of the Securities and of their issue and sale have been duly
established in conformity with the Indenture relating to the Securities so as
not to violate any applicable law or agreement or instrument then binding on
the Company, and the Securities have been duly executed and authenticated in
accordance with such Indenture and issued and sold as contemplated in the
Registration Statement, the Securities will constitute valid and binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Validity
of Debt Securities" in the Prospectus. In giving such consent, I do not thereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/s/ Mary M. McDonald
Senior Vice President and General Counsel
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-3 Registration Statement of our
report dated January 28, 1997 included in and incorporated by reference in
Merck & Co., Inc.'s Annual Report on Form 10-K, for the fiscal year ended
December 31, 1996, as amended by Form 10-K/A dated June 16, 1997 and to all
references to our Firm included in or made a part of this Registration
Statement.
ARTHUR ANDERSEN LLP
Roseland, N.J.
September 24, 1997
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION (Exact name
of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
FOR INFORMATION, CONTACT:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
MERCK & CO., INC.
(Exact name of obligor as specified in its charter)
New Jersey 22-1109110
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Merck & Co., Inc.
One Merck Drive
Whitehouse Station, New Jersey 08889
(Address of principal executive offices) (Zip Code)
MEDIUM-TERM NOTES, SERIES C
<PAGE> 2
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to
which it is subject.
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Comptroller of the Currency Washington, D. C.
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of First Trust of New York, National
Association, incorporated herein by reference to Exhibit 1 of
Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First Trust
of New York, National Association, incorporated herein by
reference to Exhibit 2 of Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers for First Trust of New York, National Association,
incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association,
required by Section 321(b) of the Act, incorporated herein by
reference to Exhibit 6 of Form T-1, Registration No. 33-83774.
Exhibit 7. Report of Condition of First Trust of New York, National
Association, as of the close of business on June 30, 1997,
published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE> 3
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, a national
banking association organized and existing under the laws of the United States,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 22nd day of September, 1997.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Catherine F. Donohue
-----------------------------------
Catherine F. Donohue
Vice President
<PAGE> 4
EXHIBIT 4
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for
the election of directors and the transaction of other business, shall be held
at a time and place as the Chairman or President may designate. Notice of such
meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. Special Meetings. Except as otherwise specially provided by
law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors, or by any shareholder or group of
shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to
the board of directors may be made by the board of directors or by any
shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid
only for one meeting and any adjournments of such meeting and shall be filed
with the records of the meeting.
Section 1.5. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
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ARTICLE II
Directors
Section 2.1. Board of Directors. The board of directors (hereinafter
referred to as the "board"), shall have power to manage and administer the
business and affairs of the Association. All authorized corporate powers of the
Association shall be vested in and may be exercised by the board.
Section 2.2. Powers. In addition to the foregoing, the board of
directors shall have and may exercise all of the powers granted to or
conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. Number. The board shall consist of a number of members to be
fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4. Organization Meeting. The newly elected board shall meet for
the purpose of organizing the new board and electing and appointing such
officers of the Association as may be appropriate. Such meeting shall be held on
the day of the election or as soon thereafter as practicable, and, in any event,
within thirty days thereafter. If, at the time fixed for such meeting, there
shall not be a quorum present, the directors present may adjourn the meeting
until a quorum is obtained.
Section 2.5. Regular Meetings. The regular meetings of the board shall
be held, without notice, as the Chairman or President may designate and deem
suitable.
Section 2.6. Special Meetings. Special meetings of the board may be called
by the Chairman or the President of the Association, or at the request of two or
more directors. Each member of the board shall be given notice stating the time
and place of each such meeting.
Section 2.7. Quorum. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but fewer may adjourn any
meeting. Unless otherwise provided, once a quorum is established, any act by a
majority of those constituting the quorum shall be the act of the board.
Section 2.8. Vacancies. When any vacancy occurs among the directors, the
remaining members of the board may appoint a director to fill such vacancy at
any regular meeting of the board, or at a special meeting called for that
purpose.
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ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The board may appoint persons,
who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this
Association alone or the business affairs of a group of affiliated organizations
of which this Association is one. Advisory directors, shall have such powers and
duties as may be determined by the board, provided, that the board's
responsibility for the business and affairs of this Association shall in no
respect be delegated or diminished.
Section 3.2. Audit Committee. The board shall appoint an Audit Committee
which shall consist of at least two Directors of the Association or of an
affiliate of the Association. If legally permissible, the Board may determine to
name itself as the Audit Committee. The Audit Committee shall direct and review
audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and shall
continue to act until their successors are named. The Audit Committee shall have
power to adopt its own rules and procedures and to do those things which in the
judgment of such Committee are necessary or helpful with respect to the exercise
of its functions or the satisfaction of its responsibilities.
Section 3.3. Executive Committee. The board may appoint an Executive
Committee which shall consist of at least three directors and which shall have,
and may exercise, all the powers of the board between meetings of the board or
otherwise when the board is not meeting.
Section 3.4. Other Committees. The board may appoint, from time to time,
committees of one or more persons who need not be directors, for such purposes
and with such powers as the board may determine. In addition, either the
Chairman or the President may appoint, from time to time, committees of one or
more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any such
Committee shall at all times be subject to the direction and control of the
board.
Section 3.5. Meetings. Minutes and Rules. An advisory board of directors
and/or committee shall meet as necessary in consideration of the purpose of the
advisory board of directors or committee, and shall maintain minutes in
sufficient detail to indicate actions taken or recommendations made; unless
required by the members, discussions,
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votes or other specific details need not be reported. An advisory board of
directors or a committee may, in consideration of its purpose, adopt its own
rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers and Employees
Section 4.1. Chairman of the Board. The board may appoint one of its
members to be Chairman of the board to serve at the pleasure of the board. The
Chairman shall supervise the carrying out of the policies adopted or approved by
the board; shall have general executive powers, as well as the specific powers
conferred by these Bylaws; shall also have and may exercise such powers and
duties as from time to time may be conferred upon or assigned by the board.
Section 4.2. President. The board may appoint one of its members to be
President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board . The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3. Vice President. The board may appoint one or more Vice
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and President.
Section 4.4. Secretary. The board shall appoint a Secretary, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these Bylaws to be given; shall be
custodian of the corporate seal, records, document and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board.
Section 4.5. Other Officers. The board may appoint, and may authorize the
Chairman or the President to appoint, any officer as from time to time may
appear to the board, the Chairman or the President to be required or desirable
to transact the business of the Association. Such officers shall exercise such
powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the board, the Chairman or
the President.
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Section 4.6. Tenure of Office. The Chairman or the President and all other
officers shall hold office for the current year for which the board was elected,
unless they shall resign, become disqualified, or be removed. Any vacancy
occurring in the Office of Chairman or President shall be filled promptly by the
board.
Any officer elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
ARTICLE V
Stock
Section 5.1. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall,
in proportion to such person's shares, succeed to all rights of the prior holder
of such shares. Each certificate of stock shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VI
Corporate Seal
Section 6.1. The Chairman, the President, the Secretary, any Assistant
Secretary or other officer designated by the board, the Chairman, or the
President, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially in
the following form:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts,
orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the
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Association. The provisions of this section are supplementary to any other
provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association
files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall
be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and
class of investments to be made and does not vest in the Association a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The association shall indemnify to the full extent permitted
by, and in the manner permissible under, the Articles of Association and the
laws of the United States of America, as applicable and as amended from time to
time, any person made, or threatened to be made, a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that such person is or was a director, advisory director, officer or
employee of the Association, or any predecessor of the Association, or served
any other enterprise as a director or officer at the request of the Association
or any predecessor of the Association.
Section 8.2. The board in its discretion may, on behalf of the
Association, indemnify any person, other than a director, advisory director,
officer or employee, made a party to any action, suit or proceeding by reason of
the fact that such person is or was an agent of the Association or any
predecessor of the Association serving in such capacity at the request of the
Association or any predecessor of the Association.
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ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and
subject to appropriate provisions of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all times
be kept in a convenient place at the main office of the Association, and shall
be open for inspection to all shareholders during Association hours.
I, Catherine F. Donohue, hereby certify that: (i) I am a duly constituted
Assistant Secretary of FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION (the
"Association") and (ii) the foregoing bylaws are the bylaws of the Association,
and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature and the seal of the
Association, in the City of New York, on the 22nd day of September, 1997.
By: /s/ Catherine F. Donohue
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Name: Catherine F. Donohue
Title: Assistant Secretary
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Exhibit 7
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
STATEMENT OF FINANCIAL CONDITION
AS OF 6/30/97
<TABLE>
<CAPTION>
($000'S)
6/30/97
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<S> <C>
ASSETS
Cash and Due From Depository Institutions $ 35,121
Federal Reserve Stock 3,490
Fixed Assets 802
Intangible Assets 77,269
Other Assets 5,921
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TOTAL ASSETS $ 122,603
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LIABILITIES
Other Liabilities 7,037
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TOTAL LIABILITIES 703
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (6,367)
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TOTAL EQUITY CAPITAL 115,565
TOTAL LIABILITIES AND EQUITY CAPITAL $ 122,603
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</TABLE>
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, National Association
By: /s/ Catherine F. Donohue
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Vice President
Date: September 22, 1997
