SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
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Filed
by the Registrant x
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Filed
by a Party other than the Registrant o
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Check
the appropriate box:
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to §240.14a-12
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Merck
& Co., Inc.
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(Name
of Registrant as Specified In Its Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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x
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No
fee required.
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Fee
computed on table below per Exchange Act
Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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Aggregate
number of securities to which transaction applies:
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Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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Total
fee paid:
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Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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Form,
Schedule or Registration Statement No.:
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Filing
Party:
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Filed:
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This
filing consists of content included in a press release issued on May 27,
2009 as published on the Merck & Co., Inc. (“Merck”) internal website on May
28, 2009, in connection with the proposed transaction between Merck and
Schering-Plough Corporation.
Published
in The Daily on May 28 article 1
Schering-Plough
and Merck Provide Update on Distribution Agreement
Schering-Plough
has been notified that Johnson & Johnson, as a result of the proposed merger
between Schering-Plough and Merck, has initiated arbitration proceedings to
resolve the parties' dispute over whether Johnson & Johnson can terminate
the distribution agreement relating to Schering-Plough's rights to Remicade and
Simponi.
While the
initiation of the proceedings does not preclude a negotiated settlement, the
companies say they are fully prepared to arbitrate the matter and to vigorously
defend their rights.
Schering-Plough
and Merck noted that Johnson & Johnson's position is contradicted by the
plain language of the Remicade distribution agreement. The companies are
confident that an arbitrator will agree that the Merck/Schering-Plough merger
does not give Johnson & Johnson the right to terminate this
agreement.
The
companies noted that the arbitration process is expected to take place over the
next 9 to 12 months and could be ongoing even after the merger has closed.
On May 5, Centocor, a wholly owned subsidiary of Johnson & Johnson, notified
Schering-Plough of its intention to arbitrate whether Centocor has the right to
terminate the distribution agreement as a result of the merger agreement and
proposed merger. The arbitration process is clearly defined involving a
number of steps, including the selection of an independent arbitrator,
information exchanges and hearings, before a final decision is
reached.
Any
change or termination of the distribution agreement is excluded by the
Merck/Schering-Plough merger agreement from the definition of "material adverse
effect" and from the definition in the credit agreements entered into in
connection with financing the merger. The companies continue to expect the
merger to be completed in the fourth quarter without regard to the
arbitration.
Forward-Looking
Statements
This communication
includes “forward-looking
statements”
within the meaning of the safe harbor provisions of the United States Private
Securities Litigation Reform Act of 1995. Such statements may include, but are
not limited to, statements about the benefits of the proposed merger
between Merck and Schering-Plough, including future financial and operating
results, the combined company’s plans, objectives, expectations and intentions
and other statements that are not historical facts. Such statements are based
upon the current beliefs and expectations of Merck’s and Schering-Plough’s
management and are subject to significant risks and uncertainties. Actual
results may differ from those set forth in the forward-looking
statements.
The
following factors, among others, could cause actual results to differ from those
set forth in the forward-looking statements: the possibility that the expected
synergies from the proposed merger of Merck and Schering-Plough will not be
realized, or will not be realized within the expected time period, due to, among
other things, the impact of pharmaceutical industry regulation and pending
legislation that could affect the pharmaceutical industry; the ability to obtain
governmental and self-regulatory organization approvals of the merger on the
proposed terms and schedule; the actual terms of the financing required for the
merger and/or the failure to obtain such financing; the failure of
Schering-Plough or Merck stockholders to approve the merger; the risk that the
businesses will not be integrated successfully; disruption from the merger
making it more difficult to maintain business and operational relationships; the
possibility that the merger does not close, including, but not limited to, due
to the failure to satisfy the closing conditions; Merck’s and Schering-Plough’s
ability to accurately predict future market conditions; dependence on the
effectiveness of Merck’s and Schering-Plough’s patents and other protections for
innovative products; the risk of new and changing regulation and health
policies in the U.S. and internationally and the exposure to litigation and/or
regulatory actions. Merck and Schering-Plough
undertake no obligation to publicly update any forward-looking statement,
whether as a result of new information, future events or
otherwise. Additional factors that could cause results to
differ materially from those described in the forward-looking statements can be
found in Merck’s 2008 Annual Report on Form 10-K, Schering-Plough’s 2008 Annual
Report on Form 10-K, the preliminary proxy statement filed by Merck on May 21,
2009 and each company’s other filings with the Securities and Exchange
Commission (the “SEC”) available at the SEC’s Internet site
(www.sec.gov).
Additional
Information
In connection with the proposed transaction,
Schering-Plough filed a registration statement, including a preliminary joint
proxy statement of Merck and Schering-Plough, with the SEC. Investors are urged to
read the registration statement and joint proxy statement (including all amendments and
supplements to it) because they contain important information. Investors may obtain
free copies of the registration statement and preliminary joint proxy statement,
as well as other filings containing information about Merck and Schering-Plough,
without charge, at the SEC’s Internet web site (www.sec.gov). These documents
may also be obtained for free from Schering-Plough’s Investor Relations web site
(www.schering-plough.com) or by directing a request to Schering-Plough’s
Investor Relations at (908) 298-7436. Copies of Merck’s filings may be obtained
for free from Merck’s Investor Relations Web Site (www.merck.com) or by
directing a request to Merck at Merck’s Office of the Secretary, (908)
423-1000.
Merck and
Schering-Plough and their respective directors and executive officers and other
members of management and employees are potential participants in the
solicitation of proxies from Merck and Schering-Plough shareholders in respect
of the proposed transaction.
Information
regarding Schering-Plough’s directors and executive officers is available in
Schering-Plough’s proxy statement for its 2009 annual meeting of shareholders,
filed with the SEC on April 27, 2009, and information regarding Merck’s
directors and executive officers is available in the registration statement
and preliminary joint proxy statement, filed with the SEC on May 20,
2009. Additional information regarding the interests of such
potential participants in the solicitation of proxies in connection
with the contemplated transactions is included in the registration
statement and preliminary joint proxy statement filed with the SEC in connection
with the proposed transaction.