SEC Comment Letter for Merck & Co., Inc. (MRK) (CIK 0000310158) (MRK) — Jun 22, 2009
Merck & Co., Inc. (MRK) (CIK 0000310158)
Date: June 22, 2009 · CIK: 0000310158 · Accession: 0000000000-09-032909
AI Filing Summary & Sentiment
File numbers found in text: 333-159371
Referenced dates: June 3, 2009
Letter
Mail Stop 4720 June 22, 2009 Michael Pressman, Esq. Senior Counsel Schering-Plough Corporation 2000 Galloping Hill Road Mailstop K-1-4525 Kenilworth, NJ 07033 Re: Schering-Plough Corporation Registration Statement on Form S-4/A Filed June 16, 2009 File No. 333-159371
Dear Mr. Pressman: We have reviewed your filing and have the following comments. Where indicated, we think you should re vise your document in response to these comments. If you disagree, we will consider your explanation as to why our comment is inapplicable or a revision is unnecessary. Please be as deta iled as necessary in your explanation. In some of our comments, we may ask you to provi de us with information so we may better understand your disclosure. After reviewing th is information, we may raise additional comments. Please understand that the purpose of our re view process is to assist you in your compliance with the applicable disclosure requirements and to enhance the overall disclosure in your filing. We look forward to working with you in these respects. We welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
FORM S-4/A
Risk Factors
Risk Factors, page 17 Risks Related to the Transaction, page 17
Michael Pressman, Esq. Senior Counsel Schering-Plough Corporation June 22, 2009 Page 2
“An arbitration proceeding commenced by Ce ntocor against Schering-Plough may result in the combined company’s loss of the ri ghts to market Remicade and golimumab…” page 20
1. We are re-issuing prior comment 1 from our comment letter dated June 3, 2009. Please revise your disclosure to addr ess the inconsistencies between the definitions of “Control” and “Change in Control” in the Distribution Agreement, specifically addressing the risk that the de finition of “Control” in the Distribution Agreement could contemplate the merger transaction between Schering-Plough and Merck.
Legal Proceedings Related to the Transaction, page 93
2. We note your statement that Section 8.2(c) of the Distribution Agreement defines when a “Change of Control” has occu rred for purposes of the Distribution Agreement. Please expand your disclosure to also include an explanation of the definition of “Control” set forth in the Distribution Agreement and specifically referenced in Section 8.2(c). Please re vise the sentence stating, “Under the plain reading of this provision, Merck and Schering-Plough be lieve that the completion of the merger will not entitle Centocor to terminate the Distribution Agreement,” to remove the reference to “plain reading.” It is evident that Section 8.2(c) offers contradictory language with respect to C ontrol and Change in Control, therefore we do not believe a reference to the “p lain reading” of this provision is appropriate.
* * *
As appropriate, please amend your regist ration statement in response to these comments. You may wish to provide us with marked copies of the amendment to expedite our review. Please furnish a cove r letter with your amendment that keys your responses to our comments and provides any requested information. Detailed cover letters greatly facilitate our review. Please understand that we may have additional comments after reviewing your amendmen t and responses to our comments. We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes all in formation required under the Securities Act of 1933 and that they have provided all information investors require for an informed investment decision. Since the company and its management are in
Michael Pressman, Esq. Senior Counsel Schering-Plough Corporation June 22, 2009 Page 3
possession of all facts relating to a company’ s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made. Notwithstanding our comments, in the ev ent the company requests acceleration of the effective date of the pending registration statement, it should furnish a letter, at the time of such request, acknowledging that: • should the Commission or the staff, acting purs uant to delegated authority, declare the filing effective, it does not foreclose th e Commission from taking any action with respect to the filing; • the action of the Commission or the staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the company from its full responsibility for the adequacy and accuracy of the disclosure in the filing; and • the company may not assert staff comments a nd the declaration of effectiveness as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. In addition, please be advi sed that the Division of En forcement has access to all information you provide to the staff of the Di vision of Corporation Finance in connection with our review of your filing or in response to our comments on your filing. We will consider a written request for acceleration of the effective date of the registration statement as conf irmation of the fact that t hose requesting acceleration are aware of their respective re sponsibilities under the S ecurities Act of 1933 and the Securities Exchange Act of 1934 as they rela te to the proposed public offering of the securities specified in the above registration statement. We will act on the request and, pursuant to delegated authority, grant acceleration of the effective date. We direct your attention to Rules 460 and 461 regarding requesting acceleration of a registration statement. Please allow ad equate time after the filing of any amendment for further review before submitting a request for acceleration. Please provide this request at least two business days in a dvance of the requested effective date. Please contact Nandini Ac harya at (202) 551-3495, Suzanne Hayes at (202) 551- 3675 or me at (202) 551- 3715 with any questions.
Michael Pressman, Esq. Senior Counsel Schering-Plough Corporation June 22, 2009 Page 4
Sincerely,
Jeffrey Riedler
A s s i s t a n t D i r e c t o r cc: Andrew Brownstein, Esq.
Wachtell, Lipton, Rosen & Katz 51 West 52
nd Street
New York, NY 10019
Show Raw Text
Mail Stop 4720 June 22, 2009 Michael Pressman, Esq. Senior Counsel Schering-Plough Corporation 2000 Galloping Hill Road Mailstop K-1-4525 Kenilworth, NJ 07033
Re: Schering-Plough Corporation
Registration Statement on Form S-4/A
Filed June 16, 2009
File No. 333-159371
Dear Mr. Pressman:
We have reviewed your filing and have the following comments. Where indicated, we think you should re vise your document in response to these comments. If
you disagree, we will consider your explanation as to why our comment is inapplicable or
a revision is unnecessary. Please be as deta iled as necessary in your explanation. In
some of our comments, we may ask you to provi de us with information so we may better
understand your disclosure. After reviewing th is information, we may raise additional
comments. Please understand that the purpose of our re view process is to assist you in your
compliance with the applicable disclosure requirements and to enhance the overall
disclosure in your filing. We look forward to working with you in these respects. We
welcome any questions you may have about our comments or any other aspect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
FORM S-4/A
Risk Factors
Risk Factors, page 17
Risks Related to the Transaction, page 17
Michael Pressman, Esq.
Senior Counsel
Schering-Plough Corporation June 22, 2009 Page 2
“An arbitration proceeding commenced by Ce ntocor against Schering-Plough may result
in the combined company’s loss of the ri ghts to market Remicade and golimumab…”
page 20
1. We are re-issuing prior comment 1 from our comment letter dated June 3, 2009.
Please revise your disclosure to addr ess the inconsistencies between the
definitions of “Control” and “Change in Control” in the Distribution Agreement,
specifically addressing the risk that the de finition of “Control” in the Distribution
Agreement could contemplate the merger transaction between Schering-Plough
and Merck.
Legal Proceedings Related to the Transaction, page 93
2. We note your statement that Section 8.2(c) of the Distribution Agreement defines
when a “Change of Control” has occu rred for purposes of the Distribution
Agreement. Please expand your disclosure to also include an explanation of the
definition of “Control” set forth in the Distribution Agreement and specifically
referenced in Section 8.2(c). Please re vise the sentence stating, “Under the plain
reading of this provision, Merck and Schering-Plough be lieve that the completion
of the merger will not entitle Centocor to terminate the Distribution Agreement,” to remove the reference to “plain reading.” It is evident that Section 8.2(c) offers
contradictory language with respect to C ontrol and Change in Control, therefore
we do not believe a reference to the “p lain reading” of this provision is
appropriate.
* * *
As appropriate, please amend your regist ration statement in response to these
comments. You may wish to provide us with marked copies of the amendment to expedite our review. Please furnish a cove r letter with your amendment that keys your
responses to our comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we may have additional comments after reviewing your amendmen t and responses to our comments.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes all in formation required under
the Securities Act of 1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its management are in
Michael Pressman, Esq.
Senior Counsel
Schering-Plough Corporation June 22, 2009 Page 3
possession of all facts relating to a company’ s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
Notwithstanding our comments, in the ev ent the company requests acceleration of
the effective date of the pending registration statement, it should furnish a letter, at the
time of such request, acknowledging that:
• should the Commission or the staff, acting purs uant to delegated authority, declare the
filing effective, it does not foreclose th e Commission from taking any action with
respect to the filing;
• the action of the Commission or the staff, acting pursuant to delegated authority, in
declaring the filing effective, does not relieve the company from its full responsibility
for the adequacy and accuracy of the disclosure in the filing; and
• the company may not assert staff comments a nd the declaration of effectiveness as a
defense in any proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advi sed that the Division of En forcement has access to all
information you provide to the staff of the Di vision of Corporation Finance in connection
with our review of your filing or in response to our comments on your filing. We will consider a written request for acceleration of the effective date of the registration statement as conf irmation of the fact that t hose requesting acceleration are
aware of their respective re sponsibilities under the S ecurities Act of 1933 and the
Securities Exchange Act of 1934 as they rela te to the proposed public offering of the
securities specified in the above registration statement. We will act on the request and,
pursuant to delegated authority, grant acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding requesting acceleration
of a registration statement. Please allow ad equate time after the filing of any amendment
for further review before submitting a request for acceleration. Please provide this request at least two business days in a dvance of the requested effective date.
Please contact Nandini Ac harya at (202) 551-3495, Suzanne Hayes at (202) 551-
3675 or me at (202) 551- 3715 with any questions.
Michael Pressman, Esq.
Senior Counsel Schering-Plough Corporation June 22, 2009 Page 4
Sincerely,
Jeffrey Riedler
A s s i s t a n t D i r e c t o r cc: Andrew Brownstein, Esq.
Wachtell, Lipton, Rosen & Katz 51 West 52
nd Street
New York, NY 10019