Tag Archives: Merck Schering Plough COnfidential Treatment Joint Vent

On the Day AFTER Schering Reports Q3 Results, Merck Will Update 2008 to 2010 Guidance

This ought to make Schering’s call interesting. Merck has elected to let Schering-Plough “go first” — in announcing Third Quarter 2008 results. Then, the next morning, on October 22, 2008, Merck will announce its results and update the guidance it suspended, and withdrew after the SEAS trial top-line results were announced — back on July 21, 2008.

Schering won’t be able to hide behind Richard Clark’s Italian-cut, pin-striped, double-breasted, big-shouldered suits much longer, now. From Merck’s release:

. . . .During the [9:00 a.m. EDT, October 22, 2008] call, Richard T. Clark, chairman, president and chief executive officer, Peter N. Kellogg, executive vice president and chief financial officer, and Kenneth C. Frazier, executive vice president and president, Global Human Health, will provide an overview of Merck’s financial performance for the quarter plus 2008 and 2010 financial guidance. . . .

Interestingly, per the above, Merck will conduct its call during the NYSE trading day — suggesting either that (1) Merck will want the markets to be able to react, in real time, to some fundamentally important news (more likely, in my estimation) — or, (2) Merck does not expect the call to be Earth-shatteringly-material (less likely, IMO). Either way, Schering has scheduled its for before NYSE market open (per its usual practice), on October 21, 2008. It should all be rather droll — so circle both mornings in red, on your calendars. I know I have.

And what of those Cholesterol Joint Venture Agreement Amendments Schering apparently never bothered to file with the SEC, as required by Instruction 2 to Item 601 on SEC Regulation S-K?

Wow. Pop-up some Jiffy-Pop popcorn!

Vytorin Joint Venture Governance Agreements: To Be Kept “Secret” Until December 31, 2015?

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.

Some More Thoughts — on “Silently-Filed” SEC Documents . . . .

Almost without a whisper, two very large pharma companies — on July 31 (Merck), and on August 1, 2008 (Schering-Plough) — made their Second Quarter periodic disclosures on Forms 10-Q, to the SEC, and the investing public, at large.

I am puzzled that here, seven full days later, most news outlets have not yet run blurbs alerting the public to the filings (think Bloomberg, here). That is unusual — but I think it is unusual, because the companies themselves usually send a wire notice of significant periodic financial SEC fiiings to the financial news outlets. Apparently, not so this time.

I am entirely unconvinced that this was some sort of vain attempt to “hide” anyhing — for to expound that notion, is to expose it — as patently silly. One cannot “hide” SEC filings. No, I now think the SEC took a few days (perhaps lasting into yesterday afternoon) to clear the requests for confidential treatment Merck, at least, made — as to the various Joint Venture contract amendments. [I am still puzzled that Schering did not file them as exhibits to the Schering Form 10-Q, as well — as the applicable SEC rules plainly require Schering to do so.]

All of that said, I remain astonished that Schering’s SEC filing puts one of the key concerns from the SEAS study data in its third-full paragraph, while Merck makes the SEAS cancer incidence data its second full sentence of disclosure, on that topic. Morevoer, Schering’s filing makes no mention of the FDA’s now required language on Vytorin cardiac morbidity rates. Merck, in stark contrast to Schering, sets it forth, right up front. Odd. Truly.

Were I a plaintiffs’ lawyer, I might be inclined to make a little hay in front of Judge Cavanaugh on these differential disclosures — especially given that the Cholesterol Joint Venture’s Equity Income is clearly a larger proportion of Schering’s results — than Merck’s. Wow.