dss3asr_merckco.htm
As
filed with the Securities and Exchange Commission on January 22,
2010
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
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New
Jersey
(State
or other jurisdiction of
incorporation
or organization)
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22-1918501
(IRS
Employer
Identification
Number)
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One
Merck Drive
Whitehouse
Station, New Jersey 08889-0100
(908) 423-1000
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Senior
Vice President, Secretary & Assistant General Counsel
Merck
& Co., Inc.
One
Merck Drive
Whitehouse
Station, New Jersey 08889-0100
(908) 423-1000
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
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David
N. Shine, Esq.
Laraine
S. Rothenberg, Esq.
Fried,
Frank, Harris, Shriver & Jacobson LLP
One
New York Plaza
New
York, New York 10004
(212) 859-8000
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Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
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. þ
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. o
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. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Large
accelerated filer þ
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities
To
Be Registered
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Amount
To Be Registered (1)
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Proposed
Maximum Offering Price Per Unit (2)
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Proposed
Maximum Aggregate Offering Price (2)
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Amount
of Registration Fee
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| Common
Stock, par value $0.50 per share |
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Merck Sharp & Dohme Corp. 2007 Incentive Stock Plan |
9,762,022 |
$40.14
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391,847,563.08 |
$27,939
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Merck & Co., Inc. 2006
Non-Employee Directors Stock Option Plan
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25,000
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$72
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Merck Sharp & Dohme Corp.
2004 Incentive Stock Plan
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16,964,182
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$48,552
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Merck Sharp & Dohme Corp.
2001 Incentive Stock Plan
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30,876,904
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$88,370
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Merck Sharp & Dohme Corp.
1996 Incentive Stock Plan
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8,427,567 |
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338,282,539.38 |
$24,120
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Merck & Co., Inc. 2001
Non-Employee Directors Stock Option Plan
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72,475
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2,909,146.50
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$208
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Merck & Co., Inc. 1996
Non-Employee Directors Stock Option Plan
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15,825
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$46
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Rosetta Inpharmatics, Inc. 2000
Stock Plan
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2,326
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$7
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Rosetta Inpharmatics, Inc. 1997
Stock Plan
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3,554
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$11
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TOTAL
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66,149,855
(3)
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$189,325
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_________________________________
(1) Shares
issuable, from time to time, by the Registrant to former employees or former
directors of Merck Sharp & Dohme Corp., a wholly owned subsidiary of the
Registrant, upon the exercise of options or settlement of restricted stock units
or performance share units.
(2) Estimated
solely for the purpose of computing the amount of the registration fee pursuant
to Rule 457(c) and (h) of the Securities Act of 1933, as amended, and based upon
the average of the high and low sales prices of shares of the Registrant’s
common stock on January 19, 2010, as reported on the New York Stock
Exchange.
(3) In
addition, pursuant to Rule 416, this registration statement shall also cover
additional shares of the Registrant’s common stock that may become issuable
under the applicable plan by reason of any stock split, stock dividend,
recapitalization or other similar transactions effected without consideration
that results in an increase in the number of the shares of the Registrant’s
common stock.
Prospectus
Merck
& Co., Inc.
66,149,855
SHARES OF COMMON STOCK
ISSUABLE
UPON SETTLEMENT OF AWARDS
under
the
MERCK
SHARP & DOHME CORP. 2007 INCENTIVE STOCK PLAN
MERCK
& CO., INC. 2006 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
MERCK
SHARP & DOHME CORP. 2004 INCENTIVE STOCK PLAN
MERCK
SHARP & DOHME CORP. 2001 INCENTIVE STOCK PLAN
MERCK
SHARP & DOHME CORP. 1996 INCENTIVE STOCK PLAN
MERCK
& CO., INC. 2001 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
MERCK
& CO., INC. 1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
ROSETTA
INPHARMATICS, INC. 2000 STOCK PLAN
ROSETTA
INPHARMATICS, INC. 1997 STOCK PLAN
This
prospectus is related to the 66,149,855 shares of common stock, $0.50 par value
per share (“Common Stock”) of Merck & Co., Inc., formerly Schering-Plough
Corporation, (“New Merck,” or the “Company”), that may be issued upon the
exercise of stock options or settlement of restricted stock units or performance
share units granted under certain equity plans of Merck Sharp & Dohme Corp.,
formerly Merck & Co., Inc., (“Old Merck” or “MSD”) to former employees or
former directors of Old Merck, as more fully described herein.
The
exercise price of the shares of Common Stock pursuant to any stock options was
determined at the time of grant of each stock option. A description
of the relevant equity plans begins on page 5 of this
prospectus. New Merck’s Common Stock is listed on the New York Stock
Exchange under the symbol “MRK.”
Investing in New Merck’s Common Stock
involves risks. You should carefully consider all of the information set forth
in this prospectus, including the risk factors described under “Risk Factors” in
our annual and quarterly reports filed with the Securities and Exchange
Commission.
NEITHER THE SECURITIES AND EXCHANGE
COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF
THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date
of this prospectus is January 22, 2010.
TABLE
OF CONTENTS
Page
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ABOUT
THIS PROSPECTUS
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1 |
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MERCK
& CO., INC.
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RISK
FACTORS
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FORWARD-LOOKING
STATEMENTS
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DESCRIPTION
OF THE PLANS
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5 |
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Merck Sharp & Dohme Corp. 2007
Incentive Stock Plan
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5 |
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Merck & Co. Inc. 2006 Non-Employee
Directors Stock Option Plan
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8 |
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MSD Prior Equity
Plans
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U.S.
FEDERAL INCOME TAX INFORMATION
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10 |
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USE
OF PROCEEDS
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PLAN
OF DISTRIBUTION
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VALIDITY
OF COMMON STOCK
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EXPERTS
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WHERE
YOU CAN FIND MORE INFORMATION
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission (the “Commission”), as a “well-known seasoned issuer” as
defined in Rule 405 under the Securities Act of 1933, as amended, or the
Securities Act, utilizing a “shelf” registration process. Under this shelf
process, we may, from time to time, sell the shares of common stock described in
this prospectus in one or more offerings.
New Merck is the continuing public company resulting from the mergers
(together, the “Mergers”) completed on November 3, 2009 (the “Effective Date”)
of Old Merck and Schering-Plough Corporation (“Schering-Plough”). In the
Mergers, Old Merck was merged into a subsidiary of Schering-Plough.
Schering-Plough changed its name to Merck & Co., Inc. and Old Merck changed
its name to Merck Sharp & Dohme Corp. (“MSD”). References in this prospectus
to “New Merck,” “we,” “us,” “our” or the “Company” are references to Merck &
Co., Inc. (the entity formerly known as Schering-Plough Corporation) and its
consolidated subsidiaries, including MSD, unless the context otherwise
requires.
As part
of the Mergers, New Merck assumed and adopted the Merck Sharp & Dohme Corp.
2007 Incentive Stock Plan (the “MSD 2007 ISP”), formerly the Merck & Co.
Inc. 2007 Incentive Stock Plan (the “Prior 2007 ISP”), as it was amended and
restated as of the Effective Date. New Merck also assumed and adopted
the Merck & Co., Inc. 2006 Non-Employee Directors Stock Option Plan (the
“2006 Directors Plan”) as it was amended and restated as of the Effective
Date. In
addition, New Merck
assumed and adopted the Merck Sharp & Dohme Corp. 2004 Incentive Stock Plan,
Merck Sharp & Dohme Corp. 2001 Incentive Stock Plan, Merck Sharp & Dohme
Corp. 1996 Incentive Stock Plan, Merck & Co., Inc. 2001 Non-Employee
Directors Stock Option Plan, Merck & Co., Inc. 1996 Non-Employee Directors
Stock Option Plan, Rosetta Inpharmatics, Inc. 2000 Stock Plan and Rosettta
Inpharmatics, Inc. 1997 Stock Plan, as such plans may have been amended to
reflect the Mergers (collectively, the seven plans are referred to as the “MSD
Prior Equity Plans”). As part of the Mergers, New Merck has
authorized the issuance of New Merck Common Stock upon the exercise of or
settlement of awards issued under the MSD 2007 ISP, the 2006 Directors Plan and
the MSD Prior Equity Plans that remained outstanding as of the Effective
Date.
A number
of stock option, restricted stock unit and performance share unit awards issued
by Old Merck prior to the Mergers to individuals who were eligible participants
of the Prior 2007 ISP, the 2006 Directors Plan, and the MSD Prior Equity Plans
at the time of grant but who were no longer employed by, or no longer provided
service to, Old Merck on the Effective Date remained outstanding as of the
Effective Date (“Former Employee and Director Awards”). Along with
other outstanding awards, the Former Employee and Director Awards were assumed
by New Merck as part of the Mergers and continue to be governed by terms of the
plan and the specific terms and conditions under which such award was
granted. This registration statement registers shares of Common Stock
to be issued upon the exercise of stock options, or settlement of restricted
stock units or performance share units held by the Former Employee and Director
Awards.
This
prospectus provides you with a general description of the relevant information
with respect to Former Employee and Director Awards in the MSD 2007 ISP and 2006
Directors Plan, as well as the MSD Prior Equity Plans (which are no longer
actively used by New Merck). Statements contained herein concerning
the provisions of certain documents are necessarily summaries of such documents,
and each statement is qualified in its entirety by reference to the copy of the
applicable document filed with the Commission.
You
should read this prospectus, any prospectus supplement to this prospectus, any
documents that we incorporated by reference in this prospectus and any
prospectus supplement and the additional information described below under
“Where You Can Find More Information” and “Incorporation of Certain Documents by
Reference” before making an investment decision. You should rely only
on the information contained or incorporated by reference in this prospectus and
any prospectus supplement. We have not authorized any other person to
provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. We
are not making an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted.
1
You
should not assume that the information in this prospectus, any accompanying
prospectus supplement or any documents we incorporate by reference in this
prospectus and any prospectus supplement is accurate as of any date other than
the date on the front of those documents. Our business, financial
condition, results of operations and prospects may have changed since that
date.
MERCK
& CO., INC.
We are a
global research-driven pharmaceutical company that discovers, develops,
manufactures and markets a broad range of innovative products to improve human
and animal health. Our operations are principally managed on a
products basis. Our pharmaceutical operations includes products
consisting of therapeutic and preventive agents, sold by prescription, for the
treatment of human disorders and sold by us primarily to drug wholesalers and
retailers, hospitals, government agencies and managed health care providers such
as health maintenance organizations, pharmacy benefit managers and other
institutions. Our vaccines and infectious diseases operations
includes human health vaccine products consisting of preventative pediatric,
adolescent and adult vaccines, primarily administered at physician offices, and
infectious disease products consisting of therapeutic agents for the treatment
of infection sold primarily to drug wholesalers and retailers, hospitals and
government agencies. Our animal health operations discover, develop, manufacture
and market animal health products, including vaccines. Our consumer health care
operation develop, manufacture and market Over the Counter foot care and sun
care products.
We are
incorporated in the State of New Jersey and maintain our principal offices at
Whitehouse Station, New Jersey. Our address is One Merck Drive,
Whitehouse Station, New Jersey 08889-0100, and our telephone number is (908)
423-1000. Our web site is located at
www.merck.com. Information on our web site is not incorporated into
this prospectus by reference and should not be considered a part of this
prospectus.
RISK
FACTORS
Before
deciding to invest in New Merck’s Common Stock, you should carefully consider
the risk factors and forward-looking statements described in Item 1A of our most
recent Annual Report on Form 10-K for the year ended December 31, 2008, our most
recent Quarterly Report on Form 10-Q for the quarter ended September 30, 2009,
Old Merck’s most recent Annual Report on Form 10-K for the year ended December
31, 2008 and Old Merck’s Quarterly Report on Form 10-Q for the quarter ended
March 31, 2009 and the risk factors attached as Exhibit 99.4 to Old Merck’s
Current Report on Form 8-K filed on June 22, 2009 (which documents are
incorporated by reference herein). In addition, you should carefully consider
information in any accompanying prospectus supplement or any documents we
incorporate by reference in this prospectus and any accompanying prospectus
supplement, before deciding to invest in New Merck’s Common
Stock. Additional risks and uncertainties not presently known to us
or that we currently deem immaterial may also impair our business
operations.
FORWARD-LOOKING
STATEMENTS
This
prospectus, any prospectus supplement and any documents we incorporate by
reference herein or therein may contain so called “forward-looking statements”
(within the meaning of Section 27A of the Securities Act of 1933, or the
Securities Act, and Section 21E of the Securities Exchange Act of 1934, or the
Exchange Act), all of which are based on management’s current expectations and
are subject to risks and uncertainties which may cause results to differ
materially from those set forth in the statements. One can identify
these forward-looking statements by their use of words such as “expects,”
“plans,” “will,” “estimates,” “forecasts,” “projects” and other words of similar
meaning. One can also identify them by the fact that they do not
relate strictly to historical or current facts. These statements are
likely to address the Company’s growth strategy, financial results, product
development, product approvals, product potential and development programs, as
well as the integration of Old Merck and Schering-Plough. One must
carefully consider any such statement and should understand that many factors
could cause actual results to differ materially from the Company’s
forward-looking statements. These factors include inaccurate
assumptions and a broad variety of other risks and uncertainties, including some
that are known and some that are not. No forward-looking statement
can be guaranteed and actual future results may vary materially. The
Company does not assume the obligation to update any forward-looking
statement. The Company cautions you not to place undue reliance on
these forward-looking statements. One should carefully evaluate such
statements in light of factors, including risk factors, described under “Risk
Factors” above and in the documents incorporated herein by reference in which
the Company discusses in more detail various important factors that could cause
actual results to differ from expected or historic results. One
should
understand
that it is not possible to predict or identify all such
factors. Consequently, the reader should not consider any such list
to be a complete statement of all potential risks or uncertainties.
DESCRIPTION
OF THE PLANS
Merck
Sharp & Dohme Corp. 2007 Incentive Stock Plan
The MSD
2007 ISP continues to be utilized by the Company and provides a means whereby
employees and officers of MSD and its affiliates and others performing services
to New Merck (who were not previously employees of Schering-Plough or its
subsidiaries on the Closing Date) may be awarded equity compensation until such
time as a new equity compensation plan is adopted and approved by the New Merck
Board of Directors (“New Merck Board”) and the shareholders of New Merck. No new
awards will be granted to former employees or directors of MSD under the MSD
2007 ISP. As of October 1, 2009 approximately 108 million awards issued under
the MSD 2007 ISP remained outstanding, some of which represent Former Employee
and Director Awards.
The
maximum aggregate number of shares of New Merck’s Common Stock available under
the MSD 2007 ISP is 155 million shares, subject to any applicable increases or
decreases as set forth in the terms of the MSD 2007 ISP. Other key provisions
include, and are subject to the terms of the MSD 2007 ISP:
Plan
term. The MSD 2007 ISP was originally effective May 1, 2006
and no new incentives may be granted after the annual meeting of shareholders of
New Merck in or around May 2010, if the Shareholders of New Merck approve a
stock incentive plan of New Merck at such annual meeting, or earlier if
terminated by the New Merck Board. However, the term and exercise of incentives
granted before then may extend beyond that date (but no more than 10 years from
the date of grant).
Eligible for
grants. Consistent with the Prior 2007 ISP, regular full-time
and part-time employees employed by Old Merck or its subsidiaries, its
affiliates and its joint ventures are eligible to participate. For this purpose,
officers, whether or not directors of New Merck, and employees of an Old Merck
joint venture partner or affiliate of Old Merck who provide services to the
joint venture partner or affiliate are included as eligible employees. However,
any person who immediately before the Mergers was an employee, director or
independent contractor of Schering-Plough, its subsidiaries or joint venture
partners is not eligible for grants under the MSD 2007 ISP. The Compensation and
Benefits Committee of the New Merck Board (the “Committee”) or its
delegate will determine which eligible employees actually receives
grants.
Incentives
available. Types of Incentives that may be granted pursuant to
the MSD 2007 ISP include: Incentive and Nonqualified Stock Options (“Stock
Options”); Stock Appreciation Rights (“SARs”); Restricted Stock Grants;
Performance Awards; Share Awards; and Phantom Stock Awards.
Individual
Limitations. In any year, no individual may receive Incentives
covering more than 3 million shares of New Merck’s Common Stock (counted as
described in the MSD 2007 ISP).
General Limitations on
Vesting Exercisability. Incentives generally may not be
granted with a vesting period shorter than one year from grant date and Stock
Options and SARs may not be exercisable earlier than one year from grant
date. However, where there is an intervening event, vesting and
exercisability may be accelerated. For example, a change in control
of New Merck (or a change in control of Old Merck with respect to awards
outstanding on the Closing Date), or the grantee’s death, retirement,
termination of the employment caused by New Merck, or other event as established
by the Committee, or as required by applicable law, may cause Incentives to vest
sooner, if acceleration is provided for under the terms of the Incentive when it
was granted.
Repricing Prohibited.
No adjustments or reduction of the exercise price of any outstanding
incentives in the event of a decline in stock price is permitted without
approval by New Merck’s stockholders or as otherwise specifically provided under
the MSD 2007 ISP.
Special Provisions for Options.
Number
granted. Determined by the Committee or its delegate; however,
the New Merck Board determines awards for the CEO or other
directors.
5
Exercise
Price. Not less than fair market value of a share of stock on
grant date. The fair market value currently is generally the closing
price of New Merck’s Common Stock as quoted on the New York Stock Exchange on
the grant date. However, the exercise price may be higher (not lower)
in certain countries in consideration of local law. And, New Merck intends to
refrain from offering discount options under Section 409A of the Internal
Revenue Code of 1986, as amended (the "Internal Revenue Code"), and may revise
the definition of fair market value accordingly.
Vesting and Exercise
Periods. Determined by
the Committee. However, if a grantee’s employment is terminated for gross
misconduct, all rights under the Stock Option expire immediately. The term of
options generally may not exceed ten years. However, in the event of the death
of a grantee prior to the expiration of a Nonqualified Option, the Committee may
permit exercise for up to 11 years.
Limits on Incentive Stock
Options. In general, Incentive Stock Options must satisfy
requirements prescribed by the Internal Revenue Code to qualify for special tax
treatment.
Dividend
Equivalents. Dividends are neither paid nor accumulated during
the period of the Option.
Special Provisions for Restricted Stock
Awards.
“Restricted
Stock Grants”—either actual shares of Common Stock (“Restricted Stock”) or
phantom shares of Common Stock (“Restricted Stock Units”)—may be granted subject
to the terms and conditions as the Committee prescribes.
Number granted. Determined by
the Committee or its delegate, including the New Merck Board for any awards to
the CEO or other Board Members.
Employment required. Grantees
generally must remain employed during a period designated by the Committee
(“Restricted Period”) in order to receive the shares, cash or combination under
the Restricted Stock Grant. If
employment ends before the Restricted Period ends, Restricted Stock Grant will
terminate. However, the Committee may, at the time of the grant, provide for the
employment restriction to lapse with respect to a portion or portions of the
Restricted Stock Grant at different times during the Restricted Period. The
Committee may, in its
discretion, also provide for complete or partial exceptions to the employment
restriction as it deems equitable. All
restrictions imposed under the Restricted Stock Grant lapse upon the expiration
of the Restricted Period if the conditions described above have been
met.
Form of Grant. Restricted
Stock Grants are shares of actual Common Stock. Payouts of Restricted Stock
Units may be in the form of shares of Common Stock, cash or any combination of
shares and cash as determined by the Committee.
Dividend Equivalents. The
Committee may at the time of grant provide that dividends (or dividend
equivalents for Restricted Stock Units) during the Restricted Period are paid or
accumulated, or neither paid nor accumulated.
Special Provisions for Performance Share
Awards.
The
Committee will determine the period for which a Performance Share Award is made
(“Award Period”) and the applicable performance goals.
Number granted. Determined by
the Committee or its delegate (Board for CEO or other Board
member).
Performance Goals. May
include any or a combination of the following: share price, pre-tax profits,
earnings per share, return on stockholders’ equity, return on assets, sales, net
income, or total shareholder return. For a Performance Share Award not intended
to constitute “performance-based compensation” under Section 162(m) of the
Internal Revenue Code, measures may include any other financial or other
measurement established by the Committee.
6
Performance
Share Award Payouts. The Committee will establish the method of
calculating the amount of payment to be made under a Performance Award if
Performance Goals are met, including any maximum payment. After the
completion of an Award Period, the relevant performance will be measured against
the Performance Goals, and the Committee will determine whether all, none or a
portion of Performance Award is paid.
Dividend Equivalents. The
Committee may at the time of grant provide that dividends or dividend
equivalents during the Award Period are paid or accumulated, or neither paid nor
accumulated.
Other Information.
Plan
Administration. The MSD 2007 ISP is administered by the
Committee. The Committee is comprised of Non-Employee Directors, who may not
receive any awards under the MSD 2007 ISP. The Committee establishes the terms
and conditions of awards, subject to certain limitations in the MSD 2007 ISP
plan document. The Committee may delegate to the Chief Executive Officer or
other executive officers of Old Merck or New Merck certain authority, including
the authority to grant awards to eligible employees who are not officers of New
Merck subject to Section 16 of the Securities Exchange Act of 1934.
Change in
Control. Upon a “change in control” of New Merck (or Old Merck
with respect to awards outstanding on the Closing Date of the Merger), all
outstanding stock options will become fully vested.
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In
general, vested stock options may be exercised for five years following
termination of the option holder’s employment following a change in
control (but not beyond the original term of the stock option). This
extended exercise period would not apply in the case of terminations by
reasons of death or retirement or for gross
misconduct.
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If
stock options do not remain outstanding following the change in control
and are not converted into successor stock options, then option holders
will be entitled to receive cash for their options in an amount at least
equal to the difference between the exercise price and the price paid to
shareholders in the change in
control.
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After
a change in control, amendment of the MSD 2007 ISP is limited. The MSD
2007 ISP also provides for payment of participants’ legal fees in the
event of disputes after a change in
control.
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A “change
in control” for purposes of the MSD 2007 ISP generally consists of any of the
following:
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an
acquisition of more than 20% of New Merck’s voting securities (other than
acquisitions directly from New
Merck);
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the
New Merck Board, as of the time of the Merger, (and their approved
successors) ceasing to constitute a majority of the New Merck Board or, if
applicable, the board of directors of a successor to New
Merck;
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·
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the
consummation of a merger, consolidation or reorganization, unless (1) the
shareholders of New Merck prior to the transaction hold at least 60% of
the voting securities of the successor, (2) the members of the Board prior
to the transaction constitute at least a majority of the board of
directors of the successor and (3) no person owns 20% or more of the
voting securities of New Merck or the successor;
or
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the
liquidation or dissolution of New Merck or the sale by New Merck of all or
substantially all of its assets.
|
With
respect to any awards that remained outstanding as of the Closing Date, granted
under the MSD 2007 ISP, a “change in control” of New Merck will apply to their
terms and conditions, as well as a “change in control” of Old Merck based on the
same definition described above but with respect to Old Merck. In addition, for
any award that is deferred compensation subject to Section 409A of the Internal
Revenue Code, the definition permitted under 409A of the Internal
Revenue Code will apply.
7
Adjustments.
In the
event of a reorganization, recapitalization, stock split, stock dividend,
extraordinary cash dividend, combination of shares, merger, consolidation,
rights offering, spin off, split off, split up or other event identified by the
Committee, the Compensation and Benefits Committee will make the adjustments, if
any, as it deems appropriate in (i) the number and kind of shares authorized for
issuance under the MSD 2007 ISP, (ii) the number and kind of shares subject to
outstanding incentives, (iii) the option price of Stock Options and (iv) the
grant value of SARs.
Amendment and Termination.
The New
Merck Board may discontinue the MSD 2007 ISP at any time and may from time to
time amend or revise the terms of the MSD 2007 ISP as permitted by applicable
statutes. However, it may not, without the consent of affected grantees, revoke
or alter outstanding incentives in a manner unfavorable to them. The New Merck
Board also may not amend the MSD 2007 ISP without stockholder approval where the
absence of approval would cause the MSD 2007 ISP to fail to comply with Rule
16b-3 under the Exchange Act, or any other requirement of applicable law or
regulation. Notwithstanding the foregoing, without consent of affected grantees,
incentives may be amended, revised or revoked when necessary to avoid penalties
under Section 409A of the Internal Revenue Code.
Merck
& Co. Inc. 2006 Non-Employee Directors Stock Option Plan
The 2006
Directors Plan continues to be utilized by New Merck and is a means whereby
non-employee Directors of New Merck (who were not Directors of Schering-Plough
on to the Closing Date) may be awarded equity compensation until such time as a
new non-employee director stock option plan is adopted and approved by
shareholders of New Merck. The Directors’ mutual interest with stockholders in
increasing the long-term value of New Merck’s stock should benefit New Merck and
its shareholders. However, no new awards will be granted to any
former directors of MSD under the 2006 Directors Plan, unless the director
serves as a director of New Merck. As of October 1, 2009 approximately 225,000
awards issued under the 2006 Directors Plan remained outstanding, some of which
represent Former Employee and Director Awards.
The
maximum number of shares of New Merck’s Common Stock available under the 2006
Directors Plan is 1,000,000 (one million) shares, subject to any applicable
increases or decreases as set forth in the 2006 Directors Plan. Other key
provisions include, and are subject to the terms of the 2006 Directors
Plan:
Primary
aspects of 2006 Directors Plan are as follows, and are subject to the terms of
the Amended and Restated 2006 Directors Plan:
Plan
Term. The 2006 Directors Plan was originally effective on
April 25, 2006, and will terminate on December 31, 2015, unless terminated
earlier by the New Merck Board or extended by the New Merck Board with the
approval of stockholders. However, the term and exercise of incentives granted
before then may extend beyond that date.
Eligibility. “Non-Employee
Directors”—that is, members of the New Merck Board who are not current or former
employees of New Merck or any of its subsidiaries and who were not directors of
Schering-Plough on the Closing Date (unless the 2006 Directors Plan is approved
by the stockholders of New Merck after the Closing Date).
8
Number
granted. 5,000 options for shares if New Merck Common Stock—or
such other amount as determined by the New Merck Board from time to time—granted
on the first Friday following New Merck’s Annual Meeting of Stockholders that
each individual is elected, reelected or continuing as a Non-Employee
Director.
Exercise
Price. Exercise price of options will be the closing price of
New Merck Common Stock as quoted on the New York Stock Exchange on the grant
date.
Vesting and Exercise
Periods. Options generally become exercisable in three annual
equal installments beginning on the one year anniversary of the grant date and
expire ten years from date of grant. The exercise price and any required tax
withholding must be paid in cash or in such other manner as permitted for option
exercises under New Merck’s Incentive Stock Plan (including the MSD 2007 ISP)
applicable to employees of New Merck and its affiliates.
Cessation of
Service: If a Non-Employee Director ceases service for any
reason other than retirement or death, only options that were then exercisable
may be exercised, and they expire if not exercised within three months of the
date service ceased.
Death. All options immediately become
exercisable and expire on the earlier of their original term or within three
years of the date of death.
Retirement. Upon termination of service after at
least age 65 and at least ten years of service, or at least age 70 and at least
five years of service, a Non-Employee Director’s options will continue to become
exercisable as if employment had continued, and must be exercised within ten
years of the grant.
Other Information.
No reduction in exercise
price. Unless approved by the New Merck’s stockholders, no
adjustments or reduction of the exercise price of any outstanding options may be
made, either directly or by cancelling outstanding options and subsequently
regranting options at a lower price to the same individual.
Adjustments. In
the event of reorganization, recapitalization, stock split, stock dividend,
extraordinary cash dividend, combination of shares, merger, consolidation,
rights offering or other similar change in the capital structure or shares of
New Merck, adjustments in the number and kind of shares authorized by this 2006
Directors Plan, in the number and kind of shares covered by Incentives, and in
the option price of outstanding NQSOs under, the 2006 Directors Plan will be
made if, and in the same manner as, such adjustments are made to incentives
issued under New Merck’s current Incentive Stock Plan subject to any required
action by the New Merck Board or the stockholders of New Merck and compliance
with applicable securities laws.
Transferability. Options
are generally exercisable during a Non-Employee Director’s lifetime only by the
Director, his or her legal guardian or legal representative. Options generally
are not transferable other than by will or by the laws of descent and
distribution. However, a Non-Employee Director may transfer an option while
serving as a Non-Employee Director of New Merck or within one year of ceasing
service as a Non-Employee Director due to Retirement as set forth in the 2006
Directors Plan.
MSD
Prior Equity Plans
(a)
Merck & Co., Inc. 2004 Incentive Stock Plan, (b) Merck & Co., Inc. 2001
Incentive Stock Plan, (c) Merck & Co., Inc. 1996 Incentive Stock Plan, (d)
Merck & Co., Inc. 2001 Non-Employee Directors Stock Option Plan, (e) Merck
& Co., Inc. 1996 Non-Employee Directors Stock Option Plan; (f) Rosetta
Inpharmatics, Inc. 2000 Stock Plan; and (g) Rosetta Inpharmatics, Inc. 1997
Stock Plan.
New Merck
assumed and adopted the MSD Prior Equity Plans and authorized the issuance of
New Merck’s Common Stock upon the exercise of, or settlement of, as applicable,
awards granted pursuant to the MSD Prior Equity Plans that remained outstanding
as of the date of the consummation of the Mergers (collectively, the “MSD
Outstanding Prior Plan Awards”).
No new awards will be granted pursuant to the MSD Prior Equity
Plans. As of October 1, 2009, approximately 157 million shares were subject to
the MSD Outstanding Prior Plan Awards pursuant to the MSD Prior Equity Plans,
some of which represent Former Employee and Director Awards.
Since
none of the MSD Prior Equity Plans continue to grant new awards, only certain
provisions of the MSD Prior Equity Plans continue to be relevant to remaining
Former Employee and Director Award holders as described below, subject to the
terms of the particular plan, including:
Provisions for
Options.
Plan Administration. The MSD
Prior Equity Plans and MSD Outstanding Prior Plan Awards will be administrated
by the Board of New Merck or the Committee.
Adjustments. In the event of
a reorganization, recapitalization, stock split, stock dividend, extraordinary
cash dividend, combination of shares, merger, consolidation, rights offering,
spin off, split off, split up or other change in the capital structure of New
Merck, the Compensation and Benefits Committee will make equitable adjustments
to (i) the number and kind of shares authorized for issuance under the MSD Prior
Equity Plans, (ii) the number and kind of shares subject to outstanding
incentives, and (iii) the option price of Stock Options.
Change in Control. For
purposes of the MSD Outstanding Prior Plan Awards (other than the Rosetta
Inpharmatics, Inc. Stock Plans and Non-Employee Directors Stock Option Plans),
following the Mergers, the definition of a “change in control” includes a
“change in control” of New Merck and a “change in control” of Old Merck, as
described above under the description of the MSD 2007 ISP. All other terms and
conditions that applied to the MSD Outstanding Prior Plan Awards immediately
prior to the Closing Date will continue to apply after the Mergers.
U.S.
FEDERAL INCOME TAX INFORMATION
THE
INFORMATION SET FORTH BELOW SUMMARIZES CERTAIN U.S. FEDERAL INCOME
TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN. THE INFORMATION IS NOT
INTENDED TO BE A COMPLETE DESCRIPTION OF ALL SUCH CONSEQUENCES, NOR IS IT
INTENDED TO BE A DESCRIPTION OF ANY KIND OF THE STATE, LOCAL OR FOREIGN TAX
CONSEQUENCES OF PARTICIPATION IN THE PLAN. THE DESCRIPTION OF FEDERAL
INCOME TAX CONSEQUENCES MAY BE AFFECTED BY FUTURE LEGISLATION, IRS RULINGS AND
REGULATIONS AND/OR COURT DECISIONS. FOR THAT REASON, PARTICIPANTS
SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE FEDERAL INCOME TAX
CONSEQUENCES, AS WELL AS THE STATE, LOCAL AND FOREIGN INCOME TAX CONSEQUENCES,
OF PARTICIPATION IN THE PLAN
An
explanation of the U.S. federal income tax consequences for option holders who
are subject to tax in the United States follows is generally described below.
Option holders should consult a tax adviser with any questions before acquiring
or disposing of any shares of New Merck’s Common Stock in connection with the
exercise of stock options under the MSD 2007 ISP, 2006 Director’s Plan, and/or
the MSD Prior Equity Plans.
Stock Options. The
grant of a nonqualified stock option would not result in income for the grantee
or a deduction for the Company. The exercise of a nonqualified stock option
would result in ordinary income for the grantee and a deduction for the Company
measured by the difference between the option price and the fair market value of
the shares received at the time of exercise. Income tax withholding would be
required.
Restricted Stock
Grants. The grant of Restricted Stock should not result in
income for the grantee or in a deduction for the Company for federal income tax
purposes, assuming the shares transferred are subject to restrictions resulting
in a “substantial risk of forfeiture” as intended by the Company. If there are
no such restrictions, the grantee would recognize
10
ordinary income upon receipt of the shares. Any dividends paid to the
grantee while the stock remained subject to restriction would be treated as
compensation for federal income tax purposes. At the time the restrictions
lapse, the grantee would receive ordinary income and the Company would be
entitled to a deduction measured by the fair market value of the shares at the
time of lapse. Income tax withholding would be required.
Performance Share
Awards. The grant of a Performance Share Award
would not result in income for the grantee or a deduction for the Company. Upon
the receipt of shares or cash under a Performance Share Award, the grantee would
recognize ordinary income and the Company would be entitled to a deduction
measured by the fair market value of the shares plus any cash received. Income
tax withholding would be required.
USE OF
PROCEEDS
The
proceeds from the sales of Common Stock pursuant to the exercise of options
under the MSD 2007 ISP, 2006 Directors Plan and/or MSD Prior Equity Plans, if
any, would be used for general corporate purposes. New Merck has no
basis for estimating either the number of shares of Common Stock that will
ultimately be sold pursuant to the exercise of such options. New
Merck expects that generally all option exercises will be effected in open
market transactions.
PLAN OF
DISTRIBUTION
We are registering 66,149,855 shares of
Common Stock issuable upon the exercise of stock options to purchase shares of
Common Stock, or settlement of restricted stock units or performance share units
in shares of Common Stock, held by former employees and former directors of MSD
who are not, and have not been, employees of New Merck. The shares of Common
Stock offered by this prospectus are quoted on the New York Stock Exchange. We
will pay all of the costs of this offering.
VALIDITY
OF COMMON STOCK
Celia A.
Colbert, our Senior Vice President, Secretary and Assistant General Counsel,
will pass upon the validity of the shares of Common Stock. As of December 1,
2009, Ms. Colbert owned, directly or indirectly, 18,302 shares of Common Stock
and exercisable options to purchase 108,812 additional shares of Common
Stock.
EXPERTS
The
financial statements incorporated in this prospectus by reference to the Current
Report on Form 8-K dated May 20, 2009 of Merck & Co., Inc. (now known as
Merck Sharp & Dohme Corp.) and management’s assessment of the effectiveness
of internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on Form 10-K of Merck & Co.,
Inc. for the year ended December 31, 2008 have been so incorporated in reliance
on the report of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
The
consolidated financial statements and the related financial statement schedule,
incorporated in this prospectus by reference from Schering-Plough Corporation
(now known as Merck & Co., Inc.) and subsidiaries’ (“Schering Plough”)
Annual Report on Form 10-K for the year ended December 31, 2008, and the
effectiveness of Schering-Plough’s internal control over financial reporting
have been audited by Deloitte & Touche LLP, an independent registered public
accounting firm, as stated in their reports, which are incorporated herein by
reference. Such reports (1) express an unqualified opinion on the consolidated
financial statements and the related financial statement schedule and included
an explanatory paragraph regarding Schering-Plough’s adoption of Statement of
Financial Accounting Standards No. 158, Employers’ Accounting for Defined Benefit Pension and
Other Postretirement Plans, and Financial Accounting Standards Board
Interpretation No. 48, Accounting for
Uncertainty in Income Taxes, and (2) express an unqualified opinion on
the effectiveness of internal control over financial reporting. Such
financial statements and financial statement schedule have been so incorporated
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
11
With
respect to the unaudited interim financial information for the periods ended
March 31, 2009, June 30, 2009 and September 30, 2009, which is incorporated
herein by reference, Deloitte & Touche LLP, an independent registered public
accounting firm, have applied limited procedures in accordance with the
standards of the Public Company Accounting Oversight Board (United States) for a
review of such information. However, as stated in their reports included in
Schering-Plough’s Quarterly Reports on Form 10-Q for the quarters ended March
31, 2009, June 30, 2009 and September 30, 2009 and incorporated by reference
herein, they did not audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their report on
such information should be restricted in light of the limited nature of the
review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
report on the unaudited interim financial information because that report is not
a “report” or a “part” of the Registration Statement prepared or certified by an
accountant within the meaning of Sections 7 and 11 of the Act.
The
combined financial statements of the Merck/Schering-Plough cholesterol
partnership incorporated in this prospectus by reference from Schering-Plough’s
and Merck & Co., Inc.’s (now known as Merck Sharp & Dohme Corp.) Annual
Reports on Form 10-K for the year ended December 31, 2008, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report which
is incorporated herein by reference. Such combined financial
statements have been so incorporated in reliance upon the report of such firm
given their authority as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We are a
reporting company under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and file annual, quarterly and current reports, proxy statements
and other information with the Securities and Exchange
Commission. You may read and copy any materials filed with the
Commission at the Commission’s Public Reference Room at 100 F Street, N.E.,
Washington, DC 20549. You may obtain information on the operation of
the Public Reference Room by calling the Commission at
1-800-SEC-0330. Also, the Commission maintains an Internet web site
that contains reports, proxy and information statements, and other information
regarding issuers, including us, that file electronically with the
Commission. The public can obtain any documents that we file
electronically with the Commission at the Commission’s Internet web site,
http://www.sec.gov, or through the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, on which our common stock is listed. In addition, you may
request copies of these filings at no cost by writing or telephoning us at the
following address: Corporate Secretary, Merck & Co., Inc., One Merck Drive,
Whitehouse Station, NJ 08889-0100, (908) 423-1000; or at our Internet web site,
http://www.merck.com.
We have
filed with the Commission a registration statement on Form S-3 relating to the
securities covered by this prospectus. This prospectus is a part of
the registration statement and does not contain all the information in the
registration statement. Whenever a reference is made in this
prospectus or any prospectus supplement to a contract or other document filed or
incorporated by reference as an exhibit to our registration statement, the
reference is only a summary. For a copy of the contract or other
document, you should refer to the exhibits that are a part of the registration
statement or incorporated by reference into the registration statement by the
filing of a Current Report on Form 8-K or otherwise. You may review a
copy of the registration statement and the documents we incorporate by reference
at the Commission’s Public Reference Room in Washington, D.C., as well as
through the Commission’s Internet web site as listed above.
You may
obtain historical information regarding Old Merck through the methods indicated
above. Certain Exchange Act filings of Old Merck are incorporated by
reference in this prospectus as set forth in more detail below. Any
Exchange Act reports filed by Old Merck after the date of this prospectus will
be incorporated by reference into this prospectus only to the extent that such
Reports expressly state that they are incorporated by reference into this
prospectus.
12
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents as filed by Merck & Co., Inc., formerly known as
Schering-Plough Corporation (IRS Employer Identification Number 22-1918501) with
the Commission (File No. 1-06571) pursuant to the Exchange Act are
incorporated by reference in this prospectus: (a) Annual Report on Form 10-K for
the fiscal year ended December 31, 2008; (b) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2009, June 30, 2009 and September 30, 2009; (c)
Current Reports on Form 8-K filed on January 20, 2009, February 3, 2009, March
9, 2009, March 11, 2009, April 21, 2009, July 21, 2009, July 24, 2009, September
3, 2009, and November 4, 2009 (as amended on November 18, 2009); and (d) the
information contained in New Merck’s Proxy Statement dated April 24, 2009 for
its Annual Meeting of Shareholders held on May 19, 2009.
The
following documents as filed by Merck Sharp & Dohme Corp. formerly known as
Merck & Co., Inc. (IRS Employer Identification Number 22-1109110) with the
Commission (File No. 1-03305) pursuant to the Exchange Act are incorporated
by reference in this prospectus: (a) Annual Report on Form 10-K for the fiscal
year ended December 31, 2008 (excluding Items 6,7, 8 and the Notes to the
consolidated financial Statements which are all superseded by information
included in the Current Report on Form 8-K filed on May 20, 2009); (b) Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2009, June 30, 2009 and
September 30, 2009; (c) Current Reports on Form 8-K filed on February 11, 2009,
February 24, 2009 (as amended on May 4, 2009), March 2, 2009, March 9,
2009, March 10, 2009, May 12, 2009, May 20, 2009, June 22, 2009, June 25, 2009,
July 1, 2009, July 31, 2009, September 21, 2009, and November 4, 2009; and (d)
the information contained in Old Merck’s Proxy Statement dated March 13, 2009
for its annual meeting of shareholders on April 28, 2009.
Also, all
documents filed by New Merck with the Commission under File No. 1-06571
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act (not
including Current Reports or portions thereof furnished under Item 2.02 or Item
7.01 under Form 8-K) after the date of this prospectus and prior to termination
of this offering shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of such filing. 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 hereof to the
extent that a statement contained herein or in any other subsequently filed
document that also is, or is deemed to be, incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
New Merck
will provide, without charge, copies of any document incorporated by reference
into this prospectus, excluding exhibits other than those that are specifically
incorporated by reference in this prospectus. You can obtain a copy
of any document incorporated by reference by writing or calling New Merck at its
principal executive offices as follows:
Merck
& Co., Inc.
P.O. Box
100 – WS 3AB-40
Whitehouse
Station, NJ 08889-0100 USA
908-423-7845
Attention:
Stockholder Services Department
Information
on our web site is not part of this prospectus, and you should not rely on that
information in making your investment decision unless that information is also
in this prospectus or has been expressly incorporated by reference into this
prospectus.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The
following table sets forth all fees and expenses payable by the registrant in
connection with the issuance and distribution of the shares of Common Stock
being registered hereby (other than underwriting or broker-dealer discounts and
commissions). All of the amounts shown are estimates.
|
SEC
registration fee
|
$ 189,325
|
|
Accounting
fees and expenses
|
50,000 |
|
Legal
fees and expenses
|
25,000 |
|
Printing
and engraving expenses
|
5,000 |
|
Miscellaneous
|
10,000 |
|
Total
|
|
|
|
|
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 stockholders, 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 stockholders, (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
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 director or officer of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise.
ITEM 16. EXHIBITS
|
5
|
|
Opinion
and Consent of Celia A. Colbert, Esq., Senior Vice President, Secretary
and Assistant General Counsel of the Registrant.
|
|
15
|
|
Awareness
Letter of Deloitte & Touche LLP, independent registered public
accounting firm for Schering-Plough Corporation.
|
|
23.1
|
|
Consent
of PricewaterhouseCoopers LLP, independent registered public accounting
firm for the Registrant.
|
|
23.2
|
|
Consent
of Deloitte & Touche LLP, independent registered public accounting
firm for Schering-Plough Corporation.
|
|
23.3
|
|
Consent
of Deloitte & Touche LLP, independent auditors for the
Merck/Schering-Plough Cholesterol Partnership.
|
|
23.4
|
|
Consent
of Celia A. Colbert, Esq., Senior Vice President, Secretary and Assistant
General Counsel of the Registrant (contained in Exhibit 5 to this
registration statement).
|
|
24.1
|
|
Powers
of Attorney (granted by officers Clark, Kellogg and Canan and
directors Brun,
Cech, Clark, Goldstone, Harrison, Jacobson, Kelley, Kidder, Represas,
Russo, Shenk, Thier, Thompson, and Wendell).
|
| 24.2 |
|
Powers
of Attorney (granted by directors Glocer,
Tatlock, Lazarus, and Weeks).
|
| 24.3 |
|
Certified
Resolutions of Board of Directors.
|
|
99.1
|
|
Merck
Sharp & Dohme Corp. 2007 Incentive Stock Plan (incorporated by
reference to Exhibit 10.7 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009). |
15
|
|
|
|
|
99.2
|
|
Merck
& Co., Inc. 2006 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.5 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
|
99.3
|
|
Merck
Sharp & Dohme Corp. 2004 Incentive Stock Plan (incorporated by
reference to Exhibit 10.8 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009).
|
|
99.4
|
|
Merck
Sharp & Dohme Corp. 2001 Incentive Stock Plan (incorporated by
reference to Exhibit 10.9 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009).
|
|
99.5
|
|
Merck
& Co., Inc. 2001 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.11 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
|
99.6
|
|
Merck
& Co., Inc. 1996 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.12 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
| 99.7 |
|
Rosetta
Inpharmatics, Inc. 2000 Stock Plan (incorporated by reference to Exhibit
99.7 to the Registrant’s Registration Statement on Form S-8 filed on
November 4, 2009).
|
| 99.8 |
|
Rosetta
Inpharmatics, Inc. 1997 Stock Plan (incorporated by reference to Exhibit
99.8 to the Registrant’s Registration Statement on Form S-8 filed on
November 4, 2009).
|
16
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; and
(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 subparagraphs (1)(i) and (1)(ii) of this section do not apply if
the information required to be included in a post-effective amendment by those
subparagraphs 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 that remain unsold at the termination of the
offering.
The
undersigned Registrant hereby undertakes that, for the purpose 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 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 this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein 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 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, 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.
17
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Whitehouse Station, State of New Jersey, on the 22nd day of January,
2010.
| |
MERCK & CO., INC. |
|
| |
|
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| |
By: |
* |
|
| |
|
Richard
T. Clark
|
|
| |
|
Chairman,
President and Chief Executive Officer
|
|
| |
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| |
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By:
|
/s/ Celia
A. Colbert |
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| |
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| |
Celia
A. Colbert |
|
| |
Senior
Vice President, Secretary and Assistant General Counsel
(Attorney-in-Fact)
|
|
| |
|
|
|
| *
Celia A. Colbert, by signing her name hereto, does herby sign this
document pursuant to powers of attorney duly executed by the person named,
filed with the Securities and Exchange Commission as an exhibit to this
document, on behalf of such person on the date stated. |
|
|
18
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated:
|
|
|
|
|
|
|
*
|
|
Chairman,
President and Chief Executive Officer; Principal Executive Officer;
Director
|
|
January
22, 2010
|
|
Richard
T. Clark
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Executive
Vice President and Chief Financial Officer; Principal Financial
Officer
|
|
|
|
Peter
N. Kellogg
|
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*
|
|
Senior
Vice President and Global Controller; Principal Accounting
Officer
|
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|
|
John
Canan
|
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|
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*
|
|
Director
|
|
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Leslie
A. Brun
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|
|
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|
|
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*
|
|
Director
|
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|
Thomas
R. Cech
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|
|
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*
|
|
Director
|
|
|
|
Thomas
H. Glocer
|
|
|
|
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|
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|
|
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|
*
|
|
Director
|
|
|
|
Steven
F. Goldstone
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
William
B. Harrison, Jr.
|
|
|
|
|
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|
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|
*
|
|
Director
|
|
|
|
Harry
R. Jacobson
|
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|
|
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| |
|
|
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|
*
|
|
Director
|
|
|
|
William
N. Kelley
|
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|
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| |
|
|
|
|
|
*
|
|
Director
|
|
|
|
C.
Robert Kidder
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Rochelle
B. Lazarus
|
|
|
|
|
|
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*
|
|
Director
|
|
|
|
Carlos
E. Represas
|
|
|
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|
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|
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*
|
|
Director
|
|
|
|
Patricia
F. Russo
|
|
|
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|
19
|
|
|
|
|
|
|
*
|
|
Director
|
|
|
|
Thomas
E. Shenk
|
|
|
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|
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|
|
|
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|
*
|
|
Director
|
|
|
|
Anne
M. Tatlock
|
|
|
|
|
|
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|
|
|
|
|
*
|
|
Director
|
|
|
|
Samuel
O. Thier
|
|
|
|
|
|
|
|
|
|
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|
*
|
|
Director
|
|
|
|
Craig
B. Thompson, M.D.
|
|
|
|
|
| |
|
|
|
|
|
*
|
|
Director
|
|
|
|
Wendell
P. Weeks
|
|
|
|
|
| |
|
|
|
|
|
*
|
|
Director
|
|
|
|
Peter
C. Wendell
|
|
|
|
|
* Celia
A. Colbert, by signing her name hereto, does herby sign this document pursuant
to powers of attorney duly executed by the person named, filed with the
Securities and Exchange Commission as an exhibit to this document, on behalf of
such person on the date stated.
20
EXHIBIT
INDEX
|
5
|
|
Opinion
and Consent of Celia A. Colbert, Esq., Senior Vice President, Secretary
and Assistant General Counsel of the Registrant.
|
|
15
|
|
Awareness
Letter of Deloitte & Touche LLP, independent registered public
accounting firm for Schering-Plough Corporation.
|
|
23.1
|
|
Consent
of PricewaterhouseCoopers LLP, independent registered public accounting
firm for the Registrant.
|
|
23.2
|
|
Consent
of Deloitte & Touche LLP, independent registered public accounting
firm for Schering-Plough Corporation.
|
|
23.3
|
|
Consent
of Deloitte & Touche LLP, independent auditors for the
Merck/Schering-Plough Cholesterol Partnership.
|
|
23.4
|
|
Consent
of Celia A. Colbert, Esq., Senior Vice President, Secretary and Assistant
General Counsel of the Registrant (contained in Exhibit 5 to this
registration statement).
|
|
24.1
|
|
Powers
of Attorney (granted by officers Clark, Kellogg and Canan and
directors Brun, Cech, Clark, Goldstone, Harrison, Jacobson, Kelley,
Kidder, Represas, Russo, Shenk, Thier, Thompson, and
Wendell).
|
| 24.2 |
|
Powers
of Attorney (granted by directors Glocer, Tatlock, Lazarus, and
Weeks).
|
| 24.3 |
|
Certified
Resolutions of Board of Directors.
|
|
99.1
|
|
Merck
Sharp & Dohme Corp. 2007 Incentive Stock Plan (incorporated by
reference to Exhibit 10.7 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009).
|
|
99.2
|
|
Merck
& Co., Inc. 2006 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.5 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
|
99.3
|
|
Merck
Sharp & Dohme Corp. 2004 Incentive Stock Plan (incorporated by
reference to Exhibit 10.8 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009).
|
|
99.4
|
|
Merck
Sharp & Dohme Corp. 2001 Incentive Stock Plan (incorporated by
reference to Exhibit 10.9 to the Registrant’s Current Report on Form 8-K
filed on November 4, 2009).
|
|
99.5
|
|
Merck
& Co., Inc. 2001 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.11 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
|
99.6
|
|
Merck
& Co., Inc. 1996 Non-Employee Directors Stock Option Plan
(incorporated by reference to Exhibit 10.12 to the Registrant’s Current
Report on Form 8-K filed on November 4, 2009).
|
| 99.7 |
|
Rosetta
Inpharmatics, Inc. 2000 Stock Plan (incorporated by reference to Exhibit
99.7 to the Registrant’s Registration Statement on Form S-8 filed on
November 4, 2009).
|
| 99.8 |
|
Rosetta
Inpharmatics, Inc. 1997 Stock Plan (incorporated by reference to Exhibit
99.8 to the Registrant’s Registration Statement on Form S-8 filed on
November 4, 2009).
|
21