I confess that I remain puzzled as to how, exactly, Schering’s SEC lawyers believe their client is even remotely in compliance with the applicable portions of Item 601. The general rule is that each company must file (or incorporate) a complete set of exhibits for itself, for each filing it makes (and incorporation from other non-affiliated companies’ filings is not permitted) — particularly related to Exhibit 10 — Material Contracts, under SEC Regulation S-K — specifically Instruction 2, to Item 601 — when it comes to disclosing what is perhaps the single most material of all the amendments to all of the contracts to which Schering-Plough is presently a party, viz.:
. . . .Material contracts.
Every contract not made in the ordinary course of business which is material to the registrant. . . .
. . . .Instruction 2. In any case where two or more indentures, contracts, franchises, or other documents required to be filed as exhibits are substantially identical in all material respects except as to the parties thereto, the dates of execution, or other details, the registrant need file a copy of only one of such documents, with a schedule identifying the other documents omitted and setting forth the material details in which such documents differ from the document a copy of which is filed. The Commission may at any time in its discretion require filing of copies of any documents so omitted. . . .
Instruction 2 to paragraph (b)(10): If a material contract is executed or becomes effective during the reporting period reflected by a Form 10-Q or Form 10-K, it shall be filed as an exhibit to the Form 10-Q or Form 10-K filed for the corresponding period. See paragraph (a)(4) of this Item. With respect to quarterly reports on Form 10-Q, only those contracts executed or becoming effective during the most recent period reflected in the report shall be filed. . . .
So — why, again, aren’t the Cholesterol Governance Agreements filed as exhibits, or at least summarized in a schedule attached to Schering’s most recent Form 10-Q?
Merck has filed these amendments as exhibits to its Form 10-Q for the most recent quarter — minus these pesky confidential portions, of course. But Merck is not Schering. And Schering is not Merck. These are two separate, otherwise unaffiliated “registrants” — in the language of Instruction 2 to Item 601 of Regulation S-K. The “convenience provision” of Instruction 2 doesn’t — by its terms — apply to more than one registrant — not even arguably. The language is plainly in the singular form — a “registrant“. Odd.
And now, add, on top of all of this, that I guess we’ll all be in the dark for quite a while: we won’t find out what those confidential portions — as filed by Merck last month — provide, until the beginning of 2016. Doubly odd:
. . . .Merck & Co., Inc. submitted an application under Rule 24b-2 requesting confidential treatment for information it excluded from the Exhibits to a Form 10-Q filed on July 31, 2008.
Based on representations by Merck & Co., Inc. that this information qualifies as confidential commercial or financial information under the Freedom of Information Act, 5 U.S.C. 552(b)(4), the Division of Corporation Finance has determined not to publicly disclose it. Accordingly, excluded information from the following exhibit(s) will not be released to the public for the time period(s) specified:
Exhibit 10.1 through December 31, 2015
Exhibit 10.2 through December 31, 2015
Exhibit 10.3 through December 31, 2015
Exhibit 10.4 through December 31, 2015
For the Commission, by the Division of Corporation Finance, pursuant to delegated authority:
/s/ Patti J. Dennis
Chief, Office of Disclosure Support
Truly puzzling, that.