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Exhibit 3(a)
RESTATED
CERTIFICATE OF INCORPORATION
OF
MERCK & CO., INC.
September 1, 2000
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RESTATED
CERTIFICATE OF INCORPORATION
OF
MERCK & CO., INC.
Merck & Co., Inc., a corporation organized and existing under the
laws of the State of New Jersey, restates and integrates its Restated
Certificate of Incorporation, as heretofore amended, to read in full as herein
set forth:
ARTICLE I: NAME
The name of the Corporation shall be Merck & Co., Inc.
ARTICLE II: REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office shall be 820 Bear
Tavern Road, City of West Trenton, County of Mercer, State of New Jersey, and
the name of its registered agent thereat shall be The Corporation Trust
Company.
ARTICLE III: OBJECTS AND PURPOSES
The objects and purposes of the Corporation shall be:
To carry on the business of exercising, performing, developing,
manufacturing, producing, obtaining, promoting, selling and distributing
rights, services, goods, wares, and merchandise of all kinds, including
but not by way of limitation, those in the chemical, mineral,
pharmaceutical, biological, medicinal, agricultural, mechanical and
electrical fields;
To carry on such business alone, in, with or as agent for other
individuals, partnerships, joint ventures, corporations, syndicates or
other forms of enterprise; and
To borrow or lend money and to make guarantees insofar as such powers
may now or hereafter be lawfully exercised by a corporation subject to
Title 14A of the New Jersey statutes.
The enumeration herein of the objects and purposes of the Corporation
shall be construed as powers as well as objects and purposes and shall not be
deemed to exclude by inference any powers, objects or purposes which any
corporation subject to Title 14A of the New Jersey statutes may now or
hereafter be empowered to exercise.
ARTICLE IV: CAPITAL STOCK
The amount of the total authorized capital stock of the Corporation shall
be 5,410,000,000 shares, consisting of 5,400,000,000 shares of Common Stock,
par value $.01 per share, and 10,000,000 shares of Preferred Stock, without
par value, issuable in one or more series.
The Board of Directors may from time to time offer for subscription or
otherwise issue or sell any or all of the unissued stock of any class, or any
shares of stock of any class which may be held in the treasury of the
Corporation, to such persons, firms or corporations and for such consideration
(so far as may be permitted by the laws of the State of New Jersey) as it
shall from time to time in its absolute discretion determine. No holder of
capital stock shall have any pre-emptive right as such holder to subscribe
for, purchase or receive any part of any new or additional issue of stock of
any class, including unissued and treasury stock, or obligations or other
securities convertible into or exchangeable for stock of any class, or
warrants or other instruments evidencing rights or options to subscribe for,
purchase or receive any stock of any class, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of
dividend.
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The preferences, qualifications, limitations, voting rights and
restrictions with respect to the capital stock of the Corporation shall be as
follows (headings are for convenience only and are not to be taken as aids to
interpretation):
(A) PREFERRED STOCK
1. The Board of Directors of the Corporation is hereby expressly granted
authority, subject to the provisions of this Restated Certificate of
Incorporation, to authorize in accordance with New Jersey law from time to
time the issue of one of more series of Preferred Stock and with respect to
any such series to fix the numbers, designations, rights, preferences and
limitations of such series, including, but without limiting the generality of
the foregoing, series of Preferred Stock:
(a) entitling the holders thereof to cumulative, non-cumulative or
partial cumulative dividends, or to no dividends;
(b) entitling the holders thereof to receive dividends payable on a
parity with, or in preference to, the dividends payable on any other class
or series of capital stock of the Corporation;
(c) entitling the holders thereof to preferential rights upon the
liquidation of, or upon any distribution of the assets of, the
Corporation;
(d) convertible, at the option of the holder or of the Corporation or
both, into shares of any other class or classes of capital stock of the
Corporation or of any series of the same or any other class or classes;
(e) redeemable, in whole or in part, at the option of the Corporation,
in cash, bonds or other property, at such price or prices, within such
period or periods, and under such conditions as the Board of Directors
shall so provide, including provision for the creation of a sinking fund
for the redemption thereof; and
(f) lacking voting rights or having limited voting rights or enjoying
special or multiple voting rights; provided, however, that no Preferred
Stock that is convertible into shares of Common Stock shall have voting
rights entitling a holder of a share of Preferred Stock to a greater
number of votes than those applicable to the number of Common Shares into
which such share of Preferred Stock is convertible, at the initial
conversion rate set for such Preferred Stock at the time of issuance
thereof.
The Board of Directors may change the designation, rights, preferences,
limitations, description and terms of, and number of shares in, any series as
to which no shares have theretofore been issued.
All shares of any one series shall be identical in all respects with all
the other shares of such series, except that shares of any one series issued
at different times may differ as to the dates from which dividends thereon
shall be cumulative.
2. Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or purchased by
the Corporation, or which, if convertible, have been converted into shares of
the Corporation of any other class or classes, shall have the status of
authorized and unissued shares of Preferred Stock which are not classified
into any series.
(B) COMMON STOCK
Subject to the preferences, qualifications, limitations, voting rights and
restrictions with respect to each class of the capital stock of the
Corporation having any preference or priority over the Common Stock, the
holders of the Common Stock shall have and possess all rights appertaining to
capital stock of the Corporation.
At all elections of directors, each holder of Common Stock entitled to
vote thereat shall be entitled to as many votes as shall equal the number of
his shares of Common Stock multiplied by the number of directors to be elected
by vote of stockholders without regard to class, and he may cast all of such
votes for a single director or may distribute them among the number of
directors to be voted for or any two or more of them as he shall see fit. At
all times each holder of Common Stock of the Corporation who at any time
possesses voting power for any purpose other than for the election of
directors shall be entitled to one vote for each share of such stock standing
in his name on the books of the Corporation.
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Subject to any limitations or restrictions set forth herein with respect
to any class of stock other than the Common Stock, any action which, at any
meeting of stockholders, requires the vote, assent or consent of two-thirds in
interest of all the stockholders, or of two-thirds in interest of each class
of stockholders, having voting powers, or which requires such assent or
consent in writing to be filed, may be taken upon the assent of and the assent
given and filed by, as the case may be, two-thirds in interest of the
stockholders present and voting at such meeting in person or by proxy, but
where assent by classes is required such assent shall be given by two-thirds
in interest of each class so present and voting.
Optional rights to purchase shares of Common Stock may be granted, on such
terms, at such price, in such manner and at such time or times as may be
expressed in a resolution or resolutions adopted by the Board of Directors,
and warrants or other evidence of such optional rights may be issued.
The Corporation shall not be required to issue any fraction of a share of
Common Stock of the Corporation.
ARTICLE V: BY-LAWS
The Board of Directors shall have power to make, alter and repeal
By-Laws; but By-Laws made by the directors may be altered or repealed by the
stockholders. Notwithstanding anything contained in this Restated Certificate
of Incorporation or the By-Laws of the Corporation to the contrary (and
notwithstanding that a lesser percentage may be specified by law or the
By-Laws), Article II of the By-Laws shall not be altered, amended or repealed
and no provision inconsistent therewith shall be adopted without the
affirmative vote of a majority of the entire Board of Directors or of the
holders of at least 80% of the combined voting power of the then outstanding
shares of stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class. Notwithstanding anything
contained in this Restated Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least 80% of the combined voting power
of the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class,
shall be required to alter, amend, adopt any provision inconsistent with or
repeal this Article V.
ARTICLE VI: DIRECTORS
The number of directors of the Corporation shall be such number, not
less than three, as may, from time to time, be provided by the By-Laws. The
By-Laws shall prescribe the manner in which the number of directors necessary
to constitute a quorum of the Board of Directors shall be determined, which
number may be less than a majority of the whole Board of Directors. The
By-Laws shall also prescribe the manner in which the retirement age of and
other restrictions and qualifications for directors of the Corporation shall
be determined. Advance notice of nomination by a stockholder for the election
of directors shall be made in the manner provided in the By-Laws.
The Board of Directors shall be divided into three classes as nearly equal
in number as possible, with the term of office of one class expiring each
year. At the annual meeting of stockholders in 1985, directors of the first
class shall be elected to hold office for a term expiring at the next
succeeding annual meeting, directors of the second class shall be elected to
hold office for a term expiring at the second succeeding annual meeting and
directors of the third class shall be elected to hold office for a term
expiring at the third succeeding annual meeting. At each annual meeting of
stockholders after 1985, successors to the directors whose terms shall then
expire shall be elected to hold office for terms expiring at the third
succeeding annual meeting. Any vacancies in the Board of Directors, by reason
of an increase in the number of directors or otherwise, shall be filled solely
by the Board of Directors, by majority vote of the directors then in office,
though less than a quorum, but any such director so elected shall hold office
only until the next succeeding annual meeting of stockholders. At such annual
meeting, such director or a successor to such director shall be elected and
qualified in the class to which such director is assigned to hold office for
the term or remainder of the term of such class. Directors shall continue in
office until others are chosen and qualified in their stead. When the number
of directors is changed, any newly created directorships or any decrease in
directorships shall be so assigned among the classes by a majority of the
directors then in office, though less than a quorum, as to make all classes as
nearly equal in number as possible. To the extent of any inequality within the
limits of the foregoing, the class or classes caused to have the greatest or
greater number of directorships shall be the class or classes then having the
last date or the later dates for the
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expiration of its or their terms. No decrease in the number of directors shall
shorten the term of any incumbent director.
Any director may be removed from office as a director but only for cause
by the affirmative vote of the holders of 80% of the combined voting power of
the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
The Board of Directors, by vote of a majority of the whole Board, may
appoint from the directors an executive committee and such other committees as
they may deem judicious; and to such extent as shall be provided in the
resolution of the Board or in the By-Laws, may delegate to such committees all
or any of the powers of the Board of Directors which may be lawfully
delegated, and such committees shall have and thereupon may exercise all or
any of the powers so delegated to them. The Board of Directors of the
Corporation or the By-Laws may provide the number of members necessary to
constitute a quorum of any committee and the number of affirmative votes
necessary for action by any committee.
Any officer and any employee elected or appointed by the Board of
Directors may be removed (except from the office of director) at any time by a
vote of a majority of the whole Board of Directors. Any other employee of the
Corporation may be removed at any time by vote of the Board of Directors or by
any committee or officer or employee upon whom such power of removal may be
conferred by the By-Laws or by vote of the Board of Directors.
The Board of Directors shall from time to time determine whether and to
what extent and at what times and places and under what conditions and
regulations the accounts, books and records of the Corporation or any of them
shall be open to the inspection of the stockholders; and no stockholder shall
have any right of inspecting any account or book or document or record of the
Corporation except as conferred by statute or authorized by the Board of
Directors or by a resolution of the stockholders.
No contract or other transaction of the Corporation shall be affected by
the fact that any of the directors of the Corporation are in any way
interested in or connected with any other party to such contract or
transaction, or are themselves parties to such contract or transaction,
provided that at the meeting of the Board of Directors or of the committee
thereof authorizing or confirming such contract or transaction there shall be
present a quorum of directors not so interested or connected, and such
contract or transaction shall be approved by a majority of such quorum, which
majority shall consist of directors not so interested or connected.
Notwithstanding the foregoing, whenever the holders of any one or more
series of Preferred Stock issued by the Corporation, pursuant to Article IV
hereof, shall have the right, voting separately as a class or by series, to
elect directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such directorships
shall be governed by the terms of the series of Preferred Stock applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article VI unless expressly provided by the terms of the
applicable series.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the combined voting power of the then outstanding shares of the stock
of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, amend, adopt
any provision inconsistent with or repeal this Article VI.
ARTICLE VII: DURATION
The duration of the Corporation shall be perpetual.
ARTICLE VIII: AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal
any of the provisions contained in this Restated Certificate of Incorporation
in the manner now or hereafter prescribed by law, and all rights conferred on
officers, directors and/or stockholders herein are granted subject to this
reservation.
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ARTICLE IX: STOCKHOLDER ACTION
Any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
such stockholders and may not be effected by any consent in writing by such
stockholders.
Notwithstanding anything contained in this Restated Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the combined voting power of the then outstanding shares of stock of
the corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, amend, adopt
any provision inconsistent with or repeal this Article IX.
ARTICLE X: CERTAIN BUSINESS COMBINATIONS
(A) In addition to any affirmative vote required by law or this Restated
Certificate of Incorporation, and except as otherwise expressly provided in
paragraph (B) of this Article X,
1. any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) an Interested Stockholder (as
hereinafter defined) or (b) any other corporation (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate or Associate (as such terms are hereinafter
defined) of an Interested Stockholder, or
2. any sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition (in one transaction or a series of
transactions) to or with (a) an Interested Stockholder or (b) any other
person (whether or not itself an Interested Stockholder) which is, or
after such sale, lease, exchange, mortgage, pledge, grant of a security
interest, transfer or other disposition would be, an Affiliate or
Associate of an Interested Stockholder, directly or indirectly, of assets
of the Corporation (including, without limitation, any voting securities
of a Subsidiary) or any Subsidiary, or both, having an aggregate Fair
Market Value (as hereinafter defined) of $50,000,000 or more, or
3. the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary, or both, to (a) an Interested Stockholder
or (b) any other person (whether or not itself an Interested Stockholder)
which is, or after such issuance or transfer would be, an Affiliate or
Associate of an Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of $50,000,000 or more, other than the issuance of securities upon
the conversion of convertible securities of the Corporation or any
Subsidiary which were not acquired by such Interested Stockholder (or such
Affiliate or Associate) from the Corporation or a Subsidiary, or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of an Interested Stockholder, or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
directly or indirectly beneficially owned by (a) an Interested Stockholder
or (b) any other person (whether or not itself an Interested Stockholder)
which is, or after such reclassification, recapitalization, merger or
consolidation or other transaction would be, an Affiliate or Associate of
an Interested Stockholder,
shall not be consummated unless such consummation shall have been approved by
the affirmative vote of the holders of at least 80% of the combined voting
power of the then outstanding shares of Voting Stock (as hereinafter defined),
voting together as a single class. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, in this Restated Certificate of
Incorporation or in any agreement with any national securities exchange or
otherwise.
(B) The provisions of paragraph (A) of this Article X shall not be
applicable to any particular Business Combination (as hereinafter defined) and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of this Restated Certificate of
Incorporation, if the Business
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Combination shall have been approved by a majority of the Continuing Directors
(as hereinafter defined) or all of the following conditions shall have been
met:
1. The transaction constituting the Business Combination shall
provide for a consideration to be received by all holders of Common Stock in
exchange for all their shares of Common Stock, and the aggregate amount of the
cash and the Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least
equal to the higher of the following:
(a) (if applicable) the highest per-share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of Common Stock beneficially
owned by an Interested Stockholder (i) within the two-year period
immediately prior to the Announcement Date (as hereinafter defined),
(ii) within the two- year period immediately prior to the
Determination Date (as hereinafter defined) or (iii) in the
transaction in which it became an Interested Stockholder, whichever
is highest; or
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is higher;
2. If the transaction constituting the Business Combination shall
provide for a consideration to be received by holders of any class or
series of outstanding Voting Stock other than Common Stock, the aggregate
amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash
to be received per share by holders of shares of such class or series of
Voting Stock shall be at least equal to the highest of the following (it
being intended that the requirements of this subparagraph 2 shall be
required to be met with respect to every class and series of outstanding
Voting Stock, whether or not an Interested Stockholder has previously
acquired any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per-share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any shares of such class or series of Voting
Stock beneficially owned by an Interested Stockholder (i) within the
two-year period immediately prior to the Announcement Date, (ii)
within the two-year period immediately prior to the Determination
Date or (iii) in the transaction in which it became an Interested
Stockholder, whichever is highest; or
(b) the Fair Market Value per share of such class or series of
Voting Stock on the Announcement Date or the Determination Date,
whichever is higher; or
(c) (if applicable) the highest preferential amount per share to
which the holders of shares of such class or series of Voting Stock
are entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
3. The consideration to be received by holders of a particular class
or series of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as was previously paid in order to acquire shares
of such class or series of Voting Stock which are beneficially owned by an
Interested Stockholder and, if an Interested Stockholder beneficially owns
shares of any class or series of Voting Stock which were acquired with
varying forms of consideration, the form of consideration for such class
or series of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class or series of Voting Stock
beneficially owned by it. The price determined in accordance with
subparagraphs 1 and 2 of this paragraph shall be subject to appropriate
adjustment in the event of any recapitalization, stock dividend, stock
split, combination of shares or similar event;
4. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(a) except as approved by a majority of the Continuing Directors,
there shall have been no failure to declare and pay at the regular
date therefor the full amount of any dividends (whether or not
cumulative) payable on any outstanding Preferred Stock;
(b) there shall have been (i) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock) other than as approved by a
majority of the Continuing Directors and (ii) an increase in such
annual rate of dividends as necessary to prevent any such reduction
in the event of any reclassification (including any reverse stock
split),
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recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Continuing Directors; and
(c) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Voting Stock except as
part of the transaction in which it became an Interested Stockholder;
5. After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise; and
6. A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
the stockholders of the Corporation, no later than the earlier of (a) 30
days prior to any vote on the proposed Business Combination or (b) if no
vote on such Business Combination is required, 60 days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to such Act or
subsequent provisions). Such proxy statement shall contain at the front
thereof, in a prominent place, any recommendations as to the advisability
(or inadvisability) of the Business Combination which the Continuing
Directors, or any of them, may have furnished in writing and, if deemed
advisable by a majority of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness)
of the terms of such Business Combination, from the point of view of the
holders of Voting Stock other than an Interested Stockholder (such
investment banking firm to be selected by a majority of the Continuing
Directors, to be furnished with all information it reasonably requests and
to be paid a reasonable fee for its services upon receipt by the
Corporation of such opinion).
(C) For the purposes of this Article X:
1. "Business Combination" shall mean any transaction which is referred
to in any one or more of subparagraphs 1 through 5 of paragraph (A) of
this Article X.
2. "Voting Stock" shall mean stock of all classes and series of the
Corporation entitled to vote generally in the election of directors.
3. "Person" shall mean any individual, firm, trust, partnership,
association, corporation or other entity.
4. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more than 5%
of the combined voting power of the then outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of more than 5% of the
combined voting power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Voting Stock which were at any time within
the two-year period immediately prior to the date in question
beneficially owned by an Interested Stockholder, unless such assignment
or succession shall have occurred pursuant to a Public Transaction (as
hereinafter defined) or any series of transactions involving a Public
Transaction.
For the purposes of determining whether a person is an Interested
Stockholder, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of subparagraph 6
below but shall not include any other shares of Voting Stock which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
5. "Public Transaction" shall mean any (a) purchase of shares offered
pursuant to an effective registration statement under the Securities Act
of 1933 or (b) open-market purchase of shares on a national securities
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exchange if, in either such case, the price and other terms of sale are
not negotiated by the purchaser and the seller of the beneficial interest
in the shares.
6. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise or (ii) the right to vote or
to direct the voting thereof pursuant to any agreement, arrangement or
understanding; or
(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
7. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1,
1985.
8. "Subsidiary" shall mean any corporation of which a majority of any
class of equity security (as defined in Rule 3a11-1 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1985) is owned, directly or indirectly, by the Corporation;
provided, however, that, for purposes of the definition of Interested
Stockholder set forth in subparagraph 4, the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
9. "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a nominee
of, an Interested Stockholder and was a member of the Board prior to the
time that such Interested Stockholder became an Interested Stockholder,
and any successor of a Continuing Director who is unaffiliated with, and
not a nominee of, an Interested Stockholder and is recommended to succeed
a Continuing Director by a majority of Continuing Directors then on the
Board.
10. "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination.
11. "Determination Date" shall mean the date on which an Interested
Stockholder became an Interested Stockholder.
12. "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use, or, if no such quotations are available,
the fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and
(b) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by a majority
of the Continuing Directors in good faith.
(D) A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Article X, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Article X, including, without limitation, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in any
Business Combination has, an aggregate Fair Market Value of $50,000,000 or
more, (5) whether the requirements of paragraph (B) of this Article X have
been met and (6) such other matters with respect to which a determination is
required under this Article X. The good faith determination of a majority of
the Continuing Directors on such matters shall be conclusive and binding for
all purposes of this Article X.
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(E) Nothing contained in this Article X shall be construed to relieve an
Interested Stockholder from any fiduciary obligation imposed by law.
(F) Notwithstanding any other provisions of this Restated Certificate of
Incorporation or the By-Laws of the Corporation or the fact that a lesser
percentage may be specified by law, this Restated Certificate of Incorporation
or the By-Laws of the Corporation, the affirmative vote of the holders of at
least 80% of the combined voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to amend, alter, adopt
any provision inconsistent with or repeal this Article X.
ARTICLE XI: PURCHASES OF STOCK OF THE CORPORATION
(A) Except as otherwise expressly provided in this Article XI, the
Corporation may not purchase any shares of Common Stock at a per-share price
in excess of the Fair Market Price (as hereinafter defined) as of the time of
such purchase from a person known by the Corporation to be a Substantial
Stockholder (as hereinafter defined), unless such purchase has been approved
by the affirmative vote of the holders of at least two-thirds of the shares of
Common Stock voted thereon held by Disinterested Stockholders (as hereinafter
defined). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required or that a lesser percentage may be specified by
law, in this Restated Certificate of Incorporation or in any agreement with
any national securities exchange or otherwise.
(B) The provisions of this Article XI shall not apply to (1) any purchase
pursuant to an offer to purchase which is made on the same terms and
conditions to the holders of all of the outstanding shares of Common Stock or
(2) any open market purchase that constitutes a Public Transaction (as
hereinafter defined).
(C) For the purposes of this Article XI:
1. "Person" shall mean any individual, firm, trust, partnership,
association, corporation or other entity.
2. "Substantial Stockholder" shall mean any person (other than any
employee benefit plan or trust of the Corporation or any similar entity)
who or which:
(a) is the beneficial owner of more than 5% of the combined voting
power of the then outstanding Common Stock, the acquisition of any
shares of which has occurred within the two-year period immediately
prior to the date on which the Corporation purchases any such shares;
or
(b) is an assignee of or has otherwise succeeded to the beneficial
ownership of any shares of Common Stock beneficially owned by a
Substantial Stockholder, unless such assignment or succession shall
have occurred pursuant to a Public Transaction or any series of
transactions involving a Public Transaction and, with respect to all
shares of Common Stock owned by such person, has been the beneficial
owner of any such shares for a period of less than two years
(including, for these purposes, the holding period of the Substantial
Stockholder from whom such person acquired shares).
For the purposes of determining whether a person is a Substantial
Stockholder, the number of shares of Common Stock deemed to be outstanding
shall include shares deemed owned through application of subparagraph 4
below but shall not include any other shares of Common Stock which may be
issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
3. "Public Transaction" shall mean any (a) purchase of shares offered
pursuant to an effective registration statement under the Securities Act
of 1933 or (b) open market purchase of shares on a national securities
exchange if, in either such case, the price and other terms of sale are
not negotiated by the purchaser and the seller of the beneficial interest
in the shares.
4. A person shall be a "beneficial owner" of any Common Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or
only after the passage of time) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion rights, exchange
rights, warrants or options, or otherwise, or (ii) the right to vote or
to direct the voting thereof pursuant to any agreement, arrangement or
understanding; or
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(c) which is beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Common Stock.
5. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1,
1985.
6. "Disinterested Stockholders" shall mean those holders of Common
Stock who are not Substantial Stockholders.
7. "Fair Market Price" shall mean the highest closing sale price on
the Composite Tape for New York Stock Exchange-Listed Stocks during the
30-day period immediately preceding the date in question of a share of
Common Stock or, if such stock is not quoted on the Composite Tape, on the
New York Stock Exchange or, if such stock is not listed on such Exchange,
the fair market value on the date in question of a share of such stock as
determined by a majority of the Board of Directors in good faith.
(D) A majority of the Board of Directors shall have the power and duty to
determine for the purposes of this Article XI, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Article XI, including without limitation, (1) whether a
person is a Substantial Stockholder, (2) the number of shares of Common Stock
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether a price is in excess of the Fair Market
Price, (5) whether a purchase constitutes a Public Transaction and (6) such
other matters with respect to which a determination is required under this
Article XI. The good faith determination of a majority of the Board of
Directors on such matters shall be conclusive and binding for all purposes of
this Article XI.
(E) Nothing contained in this Article XI shall be construed to relieve a
Substantial Stockholder from any fiduciary obligation imposed by law.
ARTICLE XII: DIRECTOR AND OFFICER LIABILITY
To the fullest extent permitted by the laws of the State of New
Jersey, as they exist or may hereafter be amended, 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 the provisions of this Article XII shall not relieve
a director or officer 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.
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ARTICLE XIII: DIRECTORS
The number of directors constituting the current Board of Directors
of the Corporation is fifteen. The names and addresses of said directors are
as follows:
<TABLE>
<S> <C>
H. Brewster Atwater, Jr................. 4900 IDS Center, 80 South 8th Street
Minneapolis, Minnesota 55402
Lawrence A. Bossidy..................... One Merck Drive
Whitehouse Station, New Jersey 08889
William G. Bowen, Ph.D.................. 140 East 62nd Street
New York, New York 10021
Johnnetta B. Cole, Ph.D................. One Merck Drive
Whitehouse Station, New Jersey 08889
Lloyd C. Elam, M.D...................... 1005 D.B. Todd Boulevard
Nashville, Tennessee 37208
Carleton S. Fiorina..................... 3000 Hanover Street
Palo Alto, California 94304
Niall FitzGerald........................ Unilever House, Blackfriars
London EC4P 4BQ, England
Raymond V. Gilmartin.................... One Merck Drive
Whitehouse Station, New Jersey 08889
William B. Harrison, Jr................. 270 Park Avenue
New York, New York 10017
William N. Kelley, M.D.................. 21 Penn Tower, 3400 Spruce Street
Philadelphia, Pennsylvania 19104
Heidi G. Miller......................... 800 Connecticut Avenue
Norwalk, Connecticut 06854
Edward M. Scolnick, M.D................. One Merck Drive
Whitehouse Station, New Jersey 08889
Anne M. Tatlock......................... 94th Floor, 2 World Trade Center
New York, New York 10048
Samuel O. Thier, M.D.................... 800 Boylston Street
Boston, Massachusetts 02199
Dennis Weatherstone..................... 60 Wall Street, 20th Floor
New York, New York 10260
</TABLE>
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IN WITNESS WHEREOF, Merck & Co., Inc. has caused this Restated Certificate
of Incorporation to be duly executed this 25th day of August, 2000.
MERCK & CO., INC.
BY KENNETH C. FRAZIER
KENNETH C. FRAZIER
SENIOR VICE PRESIDENT
AND GENERAL COUNSEL
[CORPORATE SEAL] By CELIA A. COLBERT
CELIA A. COLBERT
VICE PRESIDENT, SECRETARY AND
ASSISTANT GENERAL COUNSEL
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