Investor Relations 101

[Tina]

Issue Date: IR Alert - July 27, 2009,

Shareholders Uneasy About Merck's Plans to Merge with Schering-Plough: Multiple Lawsuits May be Resolved By New Settlement

Merck & Co. and Schering-Plough Corp., which are combining to form the world's No. 2 drugmaker, said they have each reached a settlement to end multiple lawsuits brought by shareholders seeking to block the tie-up. The two settlements, which resolve all existing claims and any that could be brought in the future by shareholders, require public disclosure — mostly already made — of details about Merck's $41.1 billion acquisition of Schering-Plough. The settlements also allow the plaintiffs to seek payment of their legal fees and costs by the companies, the AP reports.

"There's no admission of wrongdoing or liability," said Merck spokeswoman Amy Rose. "No damages were paid." The potential class-action lawsuits were filed shortly after the proposed deal was announced on March 9, when few details were public. Much of the information to be disclosed — on topics such as the opinions of and compensation of the financial advisers who helped the companies put together the deal — was divulged in the joint proxy statement the two companies filed on June 25, reports AP writer Linda A. Johnson.

For instance, Merck agreed to pay J.P. Morgan $45 million for its financial advice; Schering-Plough agreed to pay Goldman Sachs $33.3 million and Morgan Stanley $22 million. Other details were listed in a Securities and Exchange Commission filing made Friday by Schering-Plough.

Those include the fact that Schering-Plough only contacted one other company about an alternative, possibly better deal, and that the first draft of the agreement put deal-protecting restrictions on Schering-Plough: It could not accept a superior proposal from another party and would have to pay Merck $1.75 billion to back out of the deal. The final merger agreement instead set a reduced breakup fee of $1.25 billion and allowed Schering-Plough to end the deal in order to accept a superior bid.

In general, the lawsuits had accused Merck, Schering-Plough and their top executives and board members of breaching their fiduciary duty to shareholders and unjustly enriching themselves with sizable payouts for departing officers.

Among other things, shareholders of Merck argued their company was paying too much for Schering-Plough; Schering-Plough shareholders argued they were getting too little money for their fast-growing company.

Both groups are to vote on whether to approve the merger on Aug. 7. Assuming they approve it, remaining hurdles include divesting some part of the two companies' animal health businesses and getting antitrust approval from regulators in the U.S., European Union and other countries.

The deal is still expected to close in the fourth quarter, Rose said.