AMENDMENT OF MERCK & CO., INC. EQUITY STOCK PLANS
WHEREAS, Merck & Co., Inc. (the Company) maintains the plans listed on Attachment A(collectively, the Plans);
WHEREAS, some or all of the Plans provide for the grant of Stock Options and other equityawards, including restricted stock unit awards and performance share unit awards;
WHEREAS, pursuant to resolutions of the Board of Directors of the Company (the Board) datedFebruary 22, 2005, the Board has amended the Plans as set forth herein to provide for the treatmentof these awards previously granted under the Plans in the event of a Change in Control of theCompany; and
NOW, THEREFORE, pursuant to resolutions of the Board dated February 22, 2005, each of thePlans shall be, and hereby is, amended to add a new Schedule entitled Merck Change in Control atthe end thereof, as follows:
Merck Change in Control
1. Vesting of Options Other Than Key R&D Options. Upon the occurrence of a Change inControl, each Stock Option which is outstanding immediately prior to the Change in Control, otherthan the Key R&D Options, shall immediately become fully vested and exercisable.
2. Vesting of Key R&D Options.
(i) Subject to (a)(2)(ii) of this Schedule, upon the occurrence of a Change in Control, eachKey R&D Option shall continue to be subject to the performance-based vesting schedule applicablethereto immediately prior to the Change in Control.
(ii) Notwithstanding (a)(2)(i) of this Schedule, if the Stock Options do not continue to beoutstanding following the Change in Control or are not exchanged for or converted into options topurchase securities of a successor entity (Successor Options), then, upon the occurrence of aChange in Control, all or a portion of each Key R&D Option shall immediately vest and becomeexercisable in the following percentages: (A) if such Key R&D Options first milestone has not beenreached before the date of the Change in Control, 14% of the then-unvested portion of the Key R&DOption shall vest and become exercisable and the remainder shall be forfeited; (B) if only such KeyR&D Options first milestone has been reached before the date of the Change in Control, 42% of thethen-unvested portion of the Key R&D Option shall vest and become exercisable and the remaindershall be forfeited; and (C) if such Key R&D Options first and second milestones have been reachedbefore the date of the Change in Control, 100% of the then-unvested portion of the Key R&D Optionshall vest and become exercisable.
3. Post-Termination Exercise Period. If Stock Options continue to be outstandingfollowing the Change in Control or are exchanged for or converted into Successor Options, then theportion of such Stock Options or such Successor Options, as applicable, that is vested andexercisable immediately following the termination of employment of the holder thereof after theChange in Control shall remain exercisable following such termination for five years from the dateof such termination (but not beyond the remainder of the term thereof) provided, however, that, ifsuch termination is by reason of gross misconduct, death or retirement (as these terms are appliedto awards granted under the Plans), then those provisions of the Plan that are applicable to atermination by reason of gross misconduct, death or retirement, if any, shall apply to suchtermination. If the effect of vesting pursuant to this Section (a) would cause a Stock Option orSuccessor Stock Option to terminate earlier than if such accelerated vesting had not occurred, thenthe term of such Stock Option shall not expire earlier than if such accelerated vesting had notoccurred.
4. Cashout of Stock Options. If the Stock Options do not continue to be outstandingfollowing the Change in Control and are not exchanged for or converted into Successor Options, eachholder of a vested and exercisable option shall be entitled to receive, as soon as practicablefollowing the Change in Control, for each share of Common Stock subject to a vested and exercisableoption, an amount of cash determined by the Committee prior to the Change in Control but in noevent less than the excess of the Change in Control Price over the exercise price thereof (subjectto any existing deferral elections then in effect). If the consideration to be paid in a Change inControl is not entirely shares of common stock of an acquiring or resulting corporation, then theCommittee may, prior to the Change in Control, provide for the cancellation of outstanding StockOptions at the time of the Change in Control, in whole or in part, for cash pursuant to thisprovision or may provide for the exchange or conversion of outstanding Stock Options at the time ofthe Change in Control, in whole or in part, and, in connection with any such provision, may (butshall not be obligated to) permit holders of Stock Options to make such elections related theretoas it determines are appropriate.
5. Incentive Stock Options Not Amended. This Section does not apply to any incentivestock option within the meaning of Section 422 of the Internal Revenue Code.
(b) Restricted Stock Units and Performance Share Units.
1. Vesting of Restricted Stock Units. Upon the occurrence of a Change in Control,each unvested restricted stock unit award which is outstanding immediately prior to the Change inControl under the Plan shall immediately become fully vested.
2. Vesting of Performance Share Units. Upon the occurrence of a Change in Control,each unvested performance share unit award which is outstanding immediately prior to the Change inControl under the Plan shall immediately become vested in an amount equal to the PSU Pro RataAmount.
3. Settlement of Restricted Stock Units and Performance Share Units.
(i) If the Common Stock continues to be widely held and freely tradable following the Changein Control or is exchanged for or converted into securities of a successor entity that are widelyheld and freely tradable, then the restricted stock units and the vested performance share unitsshall be paid in shares of Common Stock or such other securities as soon as practicable after thedate of the Change in Control (subject to any existing deferral elections then in effect).
(ii) If the Common Stock does not continue to be widely held and freely tradable following theChange in Control and is not exchanged for or converted into securities of a successor entity thatare widely held and freely tradable, then the restricted stock units and the vested performanceshare units shall be paid in cash as soon as practicable after the date of the Change in Control(subject to any existing deferral elections then in effect).
(c) Other Provisions.
1. Except to the extent required by applicable law, for the entirety of the ProtectionPeriod, the material terms of the Plan shall not be modified in any manner that is materiallyadverse to the Qualifying Participants (it being understood that this Section (c) of this Scheduleshall not require that any specific type or levels of equity awards be granted to QualifyingParticipants following the Change in Control).
2. During the Protection Period, the Plan may not be amended or modified to reduce oreliminate the protections set forth in Section (c)(1) of this Schedule and may not be terminated.
3. The Company shall pay all legal fees and related expenses (including the costs of experts,evidence and counsel) reasonably and in good faith incurred by a Qualifying Participant if theQualifying Participant prevails on his or her claim for relief in an action (x) by the QualifyingParticipant claiming that the provisions of Section (c)(1) or (c)(2) of this Schedule have beenviolated (but, for avoidance of doubt, excluding claims for Plan benefits in the ordinary course)and (y) if applicable, by the Company or the Qualifying Participants employer to enforcepost-termination covenants against the Qualifying Participant.
4. This section does not apply to any incentive stock option within the meaning of Section422 of the Internal Revenue Code.
5. Anything in the Plan as amended by this Schedule notwithstanding, the Company reserves theright to make such further changes as may be required if and to the extent required to avoidadverse consequences under the American Jobs Creation Act of 2004, as amended.
For purposes of this Schedule, the following terms shall have the following meanings:
1. Change in Control shall have the meaning set forth in the Companys Change in ControlSeparation Benefits Plan; provided, however, that, as to any award under the Plan that consists ofdeferred compensation subject to Section 409A of the Code, the definition of Change in Controlshall be deemed modified to the extent necessary to comply with Section 409A of the Code.
2. Change in Control Price shall mean, with respect to a share of Common Stock, the higherof (A) the highest reported sales price, regular way, of such share in any transaction reported onthe New York Stock Exchange Composite Tape or other national exchange on which such shares arelisted or on the NASDAQ National Market during the 10-day period prior to and including the date ofa Change in Control and (B) if the Change in Control is the result of a tender or exchange offer,merger, or other, similar corporate transaction, the highest price per such share paid in suchtender or exchange offer, merger or other, similar corporate transaction; provided that, to theextent all or part of the consideration paid in any such transaction consists of securities orother non-cash consideration, the value of such securities or other non-cash consideration shall bedetermined by the Committee.
3. Key R&D Options shall mean those performance-based options granted to employees underthe Key Research and Development Program described in the applicable Schedule to the Rules andRegulations for the Plan, if any.
4. Protection Period shall mean the period beginning on the date of the Change in Controland ending on the second anniversary of the date of the Change in Control.
5. PSU Pro Rata Amount shall mean for each Performance Share Unit award, the amountdetermined by multiplying (x) and (y), where (x) is the number of Target Shares subject to thePerformance Share Unit award times the Assumed Performance Percentage and (y) is a fraction, thenumerator of which is the number of whole and partial calendar months elapsed during the applicableperformance period (counting any partial month as a whole month for this purpose) and thedenominator of which is the total number of months in the applicable performance period. TheAssumed Performance Percentage shall be determined by (1) averaging the ranks during the AwardPeriod as follows: (A) as to any completed performance year as of the Change in Control, the actualrank (except that, if fewer than 90 days have elapsed since the completion of such performanceyear, the Target Rank shall be used), and (B) as to any performance year that is incomplete or hasnot yet begun as of the Change in Control, the Target Rank, (2) rounding the average rankcalculated pursuant to the foregoing clause (1) to the nearest whole number using ordinarynumerical rounding, and (3) using the Final Award Percentage associated with the number determinedin the foregoing clause (2). The Target Rank is the rank associated with 100% on the chart of FinalAward Percentages.
6. Qualifying Participants shall mean those individuals who participate in the Plan(whether as current or former employees) as of immediately prior to the Change in Control.
This Schedule shall apply to Stock Options, restricted stock unit awards and performance share unitawards under the Plans granted prior to November 24, 2004.
|||2004 Merck & Co., Inc. Incentive Stock Plan|
|||2001 Merck & Co., Inc. Incentive Stock Plan|
|||1996 Merck & Co., Inc. Incentive Stock Plan|
|||Medco 1991 Class C NQ Plan|
|||Systemed 1993 Employee Stock Option Plan|
|||MMG 1991 Special NQ Plan|
|||SIBIA 1996 Equity and Incentive Plan|
|||Provantage 1999 Stock Incentive Plan|
|||Rosetta 1997 Employee Stock Plan|