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As filed with the Securities and Exchange Commission on December 20, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MERCK & CO., INC.
(Exact Name of Issuer As Specified in Its Charter)
P.O. BOX 100
WHITEHOUSE STATION, NEW JERSEY 08889-0100
(Address of Principal Executive Offices)
NEW JERSEY 22-1109110
(State of Incorporation) (I.R.S. Employer Identification No.)
MERCK-MEDCO MANAGED CARE, L.L.C.
2001 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
CELIA A. COLBERT
Vice President, Secretary & Assistant General Counsel
MERCK & CO., INC.
P.O. Box 100
Whitehouse Station, New Jersey 08889-0100
(908) 423-1000
(Name, Address and Telephone Number of Agent for Service)
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed maximum Proposed maximum Amount of
Registered Registered* offering price per aggregate registration
share** offering price** fee
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<S> <C> <C> <C> <C>
Common Stock (Par Value 800,000 $89.625 $71,700,000 $18,929
$0.01 per share) shares
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* Estimated maximum number of shares of Common Stock of Merck & Co., Inc.
issuable during the next four years of operation of the Plan.
** The price stated above is estimated solely for the purpose of determining the
registration fee and is based on the average of the high and low market prices
of the stock as reported on the New York Stock Exchange listed issues on
December 18, 2000.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the registrant (Exchange Act File No.
1-3305) with the Securities and Exchange Commission are incorporated herein by
reference and made a part hereof:
(a) Annual Report on Form 10-K, filed March 22, 2000, for the fiscal year
ended December 31, 1999;
(b) Quarterly Report on Form 10-Q, filed on May 12, 2000, for the quarter
ended March 31, 2000;
(c) Form 10-K/A filed on June 27, 2000, amending the registrant's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999;
(d) Form 11-K filed on June 27, 2000, for the fiscal year ended December
31, 1999;
(e) Quarterly Report on Form 10-Q, filed on August 10, 2000, for the
quarter ended June 30, 2000;
(f) Current Report on Form 8-K filed on October 20, 2000;
(g) Quarterly Report on Form 10-Q, filed on November 13, 2000, for the
quarter ended September 30, 2000;
(h) Current Report on Form 8-K filed on November 15, 2000;
(i) Proxy Statement filed on March 16, 2000, for the Annual Meeting of
Stockholders held on April 25, 2000;
(j) Current Report on Form 8-K filed on December 12, 2000;
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(k) Current Report on Form 8-K filed on December 12, 2000; and
(l) The descriptions of the Common Stock of the registrant set forth in the
registrant's Registration Statements pursuant to Section 12 of the
Securities Exchange Act of 1934 ("Exchange Act"), and any amendment or
report filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Section 13, 14 or
15(d) of the Exchange Act from the date hereof and prior to the termination of
the offering of the securities offered hereby shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents. An Exhibit Index can be found on page 13 of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock and interests in the plan will be
passed upon for the Company by Celia A. Colbert, Vice President, Secretary &
Assistant General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The New Jersey Business Corporation Act provides that a New Jersey
corporation has the power to indemnify a director or officer against his or her
expenses and liabilities in connection with any proceeding involving the
director or officer by reason of his or her being or having been such a director
or officer, other than a proceeding by or in the right of the corporation, if
such a director or officer acted in good faith and in a manner he or she
reasonably believed to be in or 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.
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The indemnification and advancement of expenses shall not exclude any
other rights, including the right to be indemnified against liabilities and
expenses incurred in proceedings by or in the right of the corporation, to which
a director or officer may be entitled under a certificate of incorporation,
bylaw, agreement, vote of shareholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his or her acts or omissions (a) were in breach of his or her
duty of loyalty to the corporation or its shareholders, (b) were not in good
faith or involved in a knowing violation of law or (c) resulted in receipt by
the director or officer of an improper personal benefit.
The Company's Restated Certificate of Incorporation provides that, to
the fullest extent permitted by the laws of the State of New Jersey, directors
and officers of the Company shall not be personally liable to the Company or its
stockholders for damages for breach of any duty owed to the Company or its
stockholders, except that a director or officer shall not be relieved from
liability for any breach of duty based upon an act or omission (a) in breach of
such person's duty of loyalty to the Company or its stockholders, (b) not in
good faith or involving a knowing violation of law or (c) resulting in receipt
by such person of an improper personal benefit.
The By-Laws of the Company provide that a former, present or future
director, officer or employee of the Company or the legal representative of any
such director, officer or employee shall be indemnified by the Company:
(a) against reasonable costs, disbursements and counsel fees paid or
incurred where such person has been successful in the defense on the merits or
otherwise of any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such action, suit, or
proceeding or in defense of any claim, issue or matter therein, brought by
reason of such person's being or having been such director, officer or employee,
and
(b) with respect to the defense of any such action, suit, proceeding,
inquiry or investigation for which indemnification is not made under (a) above,
against reasonable costs, disbursements (which shall include amounts paid in
satisfaction of settlements, judgments, fines
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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 director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
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4(a) -- Restated Certificate of Incorporated by reference to Form
Incorporation of the 10-Q Quarterly Report for the period
registrant (September 1, ended September 30, 2000
2000)
4(b) -- By-Laws of the registrant Incorporated by reference to Form
(as amended effective 10-Q Quarterly Report for the period
February 25, 1997) ended March 31, 1997
5 -- Opinion and Consent of Celia Filed with this Registration Statement
A. Colbert, Vice President,
Secretary and Assistant
General Counsel of registrant
23 -- Consent of Arthur Andersen Included at Page 12 of this
LLP Registration Statement
24 -- Certified Resolution of Filed with this Registration Statement
Board of Directors and Power
of Attorney
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
1.(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to the registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
2. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director,
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officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the issuer
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Whitehouse Station and the State of New Jersey on the
28th day of November 2000.
MERCK & CO., INC.
By: *
---------------------------------
Raymond V. Gilmartin
Chairman of the Board, President
& Chief Executive Officer
By: /s/ Celia A. Colbert
---------------------------------
Celia A. Colbert
Vice President, Secretary &
Assistant General Counsel
(Attorney-in-Fact)
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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*
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Raymond V. Gilmartin Chairman of the Board, November 28, 2000
President & Chief Executive
Officer; Principal Executive
Officer; Director
*
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Judy C. Lewent Senior Vice President & Chief November 28, 2000
Financial Officer; Principal
Financial Officer
*
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Richard C. Henriques, Jr. Vice President, Controller; November 28, 2000
Principal Accounting Officer
*
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H. Brewster Atwater, Jr. Director November 28, 2000
*
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Lawrence A. Bossidy Director November 28, 2000
*
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William G. Bowen Director November 28, 2000
---------------------------
Johnnetta B. Cole Director
*
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Lloyd C. Elam Director November 28, 2000
---------------------------
Carleton S. Fiorina Director
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* Celia A. Colbert, by signing her name hereto, does hereby sign this document
pursuant to powers of attorney duly executed by the persons named, filed
with the Securities and Exchange Commission as an exhibit to this document,
on behalf of such persons, all in the capacities and on the date stated,
such persons including a majority of the directors of the Company.
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<S> <C> <C>
*
---------------------------
Niall FitzGerald Director November 28, 2000
*
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William B. Harrison, Jr. Director November 28, 2000
*
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William N. Kelley Director November 28, 2000
*
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Heidi G. Miller Director November 28, 2000
*
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Edward M. Scolnick Director November 28, 2000
*
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Anne M. Tatlock Director November 28, 2000
*
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Samuel O. Thier Director November 28, 2000
*
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Dennis Weatherstone Director November 28, 2000
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* Celia A. Colbert, by signing her name hereto, does hereby sign this
document pursuant to powers of attorney duly executed by the persons
named, filed with the Securities and Exchange Commission as an exhibit to
this document, on behalf of such persons, all in the capacities and on the
date stated, such persons including a majority of the directors of the
Company.
By: /s/ Celia A. Colbert
---------------------------------
Celia A. Colbert
Vice President, Secretary &
Assistant General Counsel
(Attorney-in-Fact)
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Merck-Medco Managed Care, L.L.C. 2001 Employee Stock Purchase Plan has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Whitehouse Station, State
of New Jersey on November 28, 2000.
Merck-Medco Managed Care, L.L.C.
2001 Employee Stock Purchase Plan
By: /s/ Richard T. Clark
---------------------------------
Richard T. Clark
Member of the Plan Committee
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EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of our report
dated January 26, 2000 included in and incorporated by reference in Merck & Co.,
Inc.'s Annual Report on Form 10-K, for the fiscal year ended December 31, 1999,
as amended by Form 10-K/A dated June 27, 2000 and to all references to our firm
included in or made a part of this Registration Statement.
ARTHUR ANDERSEN LLP
New York, NY
December 20, 2000
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
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4(a) -- Restated Certificate of Incorporated by reference to Form
Incorporation of the 10-Q Quarterly Report for the period
registrant (September 1, ended September 30, 2000
2000)
4(b) -- By-Laws of the registrant Incorporated by reference to Form
(as amended effective 10-Q Quarterly Report for the period
February 25, 1997) ended March 31, 1997
5 -- Opinion and Consent of Celia Filed with this Registration Statement
A. Colbert, Vice President,
Secretary and Assistant
General Counsel of registrant
23 -- Consent of Arthur Andersen Included at Page 12 of this
LLP Registration Statement
24 -- Certified Resolution of Filed with this Registration Statement
Board of Directors and Power
of Attorney
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