Schering-Plough and Merck

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					                                                                           Federal Register / Vol. 74, No. 216 / Tuesday, November 10, 2009 / Notices                                            58019

                                                the power to vote shares of a bank or                   owned by the bank holding company,                       a. Monthly Participant Activity
                                                bank holding company and all of the                     including the companies listed below.                 Report.
                                                banks and nonbanking companies                             The applications listed below, as well                b. Monthly Investment Performance
                                                owned by the bank holding company,                      as other related filings required by the              Report.
                                                including the companies listed below.                   Board, are available for immediate                       c. Legislative Report.
                                                   The applications listed below, as well               inspection at the Federal Reserve Bank
                                                                                                        indicated. The applications also will be              Parts Closed to the Public
                                                as other related filings required by the
                                                Board, are available for immediate                      available for inspection at the offices of              3. Proprietary Information.
                                                inspection at the Federal Reserve Bank                  the Board of Governors. Interested                      4. Personnel.
                                                indicated. The applications also will be                persons may express their views in                    CONTACT PERSON FOR MORE INFORMATION:
                                                available for inspection at the offices of              writing on the standards enumerated in                Thomas J. Trabucco, Director, Office of
                                                the Board of Governors. Interested                      the BHC Act (12 U.S.C. 1842(c)). If the               External Affairs, (202) 942–1640.
                                                persons may express their views in                      proposal also involves the acquisition of
                                                                                                                                                                Dated: November 5, 2009.
                                                writing on the standards enumerated in                  a nonbanking company, the review also
                                                                                                                                                              Thomas K. Emswiler,
                                                the BHC Act (12 U.S.C. 1842(c)). If the                 includes whether the acquisition of the
                                                                                                        nonbanking company complies with the                  Secretary, Federal Retirement Thrift
                                                proposal also involves the acquisition of                                                                     Investment Board.
                                                a nonbanking company, the review also                   standards in section 4 of the BHC Act
                                                                                                        (12 U.S.C. 1843). Unless otherwise                    [FR Doc. E9–27108 Filed 11–6–09; 11:15 am]
                                                includes whether the acquisition of the
                                                nonbanking company complies with the                    noted, nonbanking activities will be                  BILLING CODE 6760–01–P

                                                standards in section 4 of the BHC Act                   conducted throughout the United States.
                                                (12 U.S.C. 1843). Unless otherwise                      Additional information on all bank
                                                noted, nonbanking activities will be                    holding companies may be obtained                     FEDERAL TRADE COMMISSION
                                                conducted throughout the United States.                 from the National Information Center                  [File No. 091 0075]
                                                Additional information on all bank                      website at www.ffiec.gov/nic/.
                                                holding companies may be obtained                          Unless otherwise noted, comments                   Schering-Plough and Merck & Co.,
                                                from the National Information Center                    regarding each of these applications                  Inc.; Analysis of Agreement Containing
                                                website at www.ffiec.gov/nic/.                          must be received at the Reserve Bank                  Consent Order to Aid Public Comment
                                                   Unless otherwise noted, comments                     indicated or the offices of the Board of
                                                                                                        Governors not later than December 7,                  AGENCY:    Federal Trade Commission.
                                                regarding each of these applications
                                                must be received at the Reserve Bank                    2009.                                                 ACTION:   Proposed Consent Agreement.
                                                indicated or the offices of the Board of                   A. Federal Reserve Bank of Atlanta
                                                                                                        (Steve Foley, Vice President) 1000                    SUMMARY: The consent agreement in this
                                                Governors not later than December 4,                                                                          matter settles alleged violations of
                                                2009.                                                   Peachtree Street, N.E., Atlanta, Georgia
                                                                                                        30309:                                                federal law prohibiting unfair or
                                                   A. Federal Reserve Bank of Chicago                                                                         deceptive acts or practices or unfair
                                                                                                           1. Community Bancorp of Louisiana,
                                                (Colette A. Fried, Assistant Vice                                                                             methods of competition. The attached
                                                                                                        Inc., Raceland, Louisiana; to merge with
                                                President) 230 South LaSalle Street,                                                                          Analysis to Aid Public Comment
                                                                                                        United Community Bancshares, Inc.,
                                                Chicago, Illinois 60690–1414:                                                                                 describes both the allegations in the
                                                                                                        and thereby indirectly acquire United
                                                   1. EB Financial Group, Inc., Hinsdale,                                                                     complaint and the terms of the consent
                                                                                                        Community Bank, both of Gonzales,
                                                Illinois; to become a bank holding                                                                            order — embodied in the consent
                                                                                                        Louisiana.
                                                company by acquiring 100 percent of                                                                           agreement — that would settle these
                                                the voting shares of Baytree National                     Board of Governors of the Federal Reserve
                                                                                                        System, November 5, 2009.                             allegations.
                                                Bank & Trust Company, Lake Forest,
                                                Illinois.                                               Robert deV. Frierson,                                 DATES: Comments must be received on
                                                                                                        Deputy Secretary of the Board.                        or before November 30, 2009.
                                                  Board of Governors of the Federal Reserve
                                                System, November 4, 2009.                               [FR Doc. E9–26993 Filed 11–9–09; 8:45 am]             ADDRESSES: Interested parties are
                                                Robert deV. Frierson,                                   BILLING CODE 6210–01–S                                invited to submit written comments
                                                                                                                                                              electronically or in paper form.
                                                Deputy Secretary of the Board.
                                                                                                                                                              Comments should refer to ‘‘Merck
                                                [FR Doc. E9–26942 Filed 11–9–09; 8:45 am]                                                                     Schering, File No. 091 0075’’ to
                                                                                                        FEDERAL RETIREMENT THRIFT
                                                BILLING CODE 6210–01–S                                                                                        facilitate the organization of comments.
                                                                                                        INVESTMENT BOARD
                                                                                                                                                              Please note that your comment —
                                                                                                        Sunshine Act; Notice of Meeting                       including your name and your state —
                                                FEDERAL RESERVE SYSTEM
                                                                                                                                                              will be placed on the public record of
                                                                                                        TIME AND DATE: 9 a.m. (Eastern Time),                 this proceeding, including on the
                                                Formations of, Acquisitions by, and
                                                                                                        November 16, 2009.                                    publicly accessible FTC website, at
                                                Mergers of Bank Holding Companies
                                                                                                        PLACE: 4th Floor Conference Room,                     (http://www.ftc.gov/os/
                                                  The companies listed in this notice                   1250 H Street, NW., Washington, DC                    publiccomments.shtm).
                                                have applied to the Board for approval,                 20005.                                                  Because comments will be made
                                                pursuant to the Bank Holding Company                    STATUS: Parts will be open to the public              public, they should not include any
                                                Act of 1956 (12 U.S.C. 1841 et seq.)                    and parts closed to the public.                       sensitive personal information, such as
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                                                (BHC Act), Regulation Y (12 CFR Part                    MATTERS TO BE CONSIDERED:                             an individual’s Social Security Number;
                                                225), and all other applicable statutes                                                                       date of birth; driver’s license number or
                                                and regulations to become a bank                        Parts Open to the Public                              other state identification number, or
                                                holding company and/or to acquire the                     1. Approval of the minutes of the                   foreign country equivalent; passport
                                                assets or the ownership of, control of, or              October 19, 2009 Board member                         number; financial account number; or
                                                the power to vote shares of a bank or                   meeting.                                              credit or debit card number. Comments
                                                bank holding company and all of the                       2. Thrift Savings Plan activity report              also should not include any sensitive
                                                banks and nonbanking companies                          by the Executive Director:                            health information, such as medical


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                                                58020                      Federal Register / Vol. 74, No. 216 / Tuesday, November 10, 2009 / Notices

                                                records or other individually                           appropriate. The Commission will                      Complaint and the Decision and Order
                                                identifiable health information. In                     consider all timely and responsive                    (‘‘Order’’) contained in the Consent
                                                addition, comments should not include                   public comments that it receives,                     Agreement. The Order seeks to remedy
                                                any ‘‘[t]rade secret or any commercial or               whether filed in paper or electronic                  the anticompetitive effects that would
                                                financial information which is obtained                 form. Comments received will be                       otherwise result from the proposed
                                                from any person and which is privileged                 available to the public on the FTC                    merger of Schering-Plough and Merck in
                                                or confidential. . . .,’’ as provided in                website, to the extent practicable, at                a number of U.S. markets. Under the
                                                Section 6(f) of the FTC Act, 15 U.S.C.                  (http://www.ftc.gov/os/                               terms of the Order, Merck is required to
                                                46(f), and Commission Rule 4.10(a)(2),                  publiccomments.shtm). As a matter of                  divest all of its interest in Merial
                                                16 CFR 4.10(a)(2). Comments containing                  discretion, the Commission makes every                Limited, an animal health joint venture
                                                material for which confidential                         effort to remove home contact                         with Sanofi-Aventis S.A. (‘‘Sanofi-
                                                treatment is requested must be filed in                 information for individuals from the                  Aventis’’), and Schering-Plough is
                                                paper form, must be clearly labeled                     public comments it receives before                    required to divest assets related to
                                                ‘‘Confidential,’’ and must comply with                  placing those comments on the FTC                     rolapitant, a neurokinin 1 (‘‘NK1’’)
                                                FTC Rule 4.9(c).1                                       website. More information, including                  receptor antagonist for chemotherapy-
                                                   Because paper mail addressed to the                  routine uses permitted by the Privacy                 induced nausea and vomiting (‘‘CINV’’)
                                                FTC is subject to delay due to                          Act, may be found in the FTC’s privacy                and post-operative nausea and vomiting
                                                heightened security screening, please                   policy, at (http://www.ftc.gov/ftc/                   (‘‘PONV’’) in humans.
                                                consider submitting your comments in                    privacy.shtm).                                           Pursuant to an Agreement and Plan of
                                                electronic form. Comments filed in                      FOR FURTHER INFORMATION CONTACT:
                                                                                                                                                              Merger dated March 8, 2009, Schering-
                                                electronic form should be submitted by                  Yolanda M. Gruendel, Bureau of                        Plough proposes to acquire Merck and
                                                using the following weblink: (https://                  Competition, 600 Pennsylvania Avenue,                 rename the surviving entity Merck (the
                                                public.commentworks.com/ftc/0910075)                    NW, Washington, D.C. 20580, (202) 326-                ‘‘Acquisition’’), in a transaction valued
                                                (and following the instructions on the                  2971.                                                 at approximately $41.1 billion. The
                                                web-based form). To ensure that the                                                                           Commission’s Complaint alleges that
                                                                                                        SUPPLEMENTARY INFORMATION: Pursuant
                                                Commission considers an electronic                                                                            the proposed Acquisition, if
                                                                                                        to section 6(f) of the Federal Trade
                                                comment, you must file it on the web-                                                                         consummated, would violate Section 7
                                                                                                        Commission Act, 38 Stat. 721, 15 U.S.C.
                                                based form at the (https://                                                                                   of the Clayton Act, as amended, 15
                                                                                                        46(f), and § 2.34 the Commission Rules
                                                public.commentworks.com/ftc/                                                                                  U.S.C. § 18, and Section 5 of the Federal
                                                                                                        of Practice, 16 CFR 2.34, notice is
                                                0910075). If this Notice appears at                                                                           Trade Commission Act, as amended, 15
                                                                                                        hereby given that the above-captioned
                                                (http://www.regulations.gov/search/                                                                           U.S.C. § 45, by lessening competition in
                                                                                                        consent agreement containing a consent
                                                index.jsp), you may also file an                                                                              the market for the manufacture and sale
                                                                                                        order to cease and desist, having been
                                                electronic comment through that                                                                               of NK1 receptor antagonists for CINV
                                                                                                        filed with and accepted, subject to final
                                                website. The Commission will consider                                                                         and PONV in humans and the
                                                                                                        approval, by the Commission, has been
                                                all comments that regulations.gov                                                                             manufacture and sale of numerous
                                                                                                        placed on the public record for a period
                                                forwards to it. You may also visit the                                                                        animal health products in the United
                                                                                                        of thirty (30) days. The following
                                                FTC website at (http://www.ftc.gov) to                                                                        States, including live poultry vaccines,
                                                                                                        Analysis to Aid Public Comment
                                                read the Notice and the news release                                                                          killed poultry vaccines and cattle
                                                                                                        describes the terms of the consent                    gonadotropins. The Consent Agreement
                                                describing it.                                          agreement, and the allegations in the
                                                   A comment filed in paper form                                                                              would remedy the alleged violations by
                                                                                                        complaint. An electronic copy of the                  replacing the competition that would be
                                                should include the ‘‘Merck Schering,                    full text of the consent agreement
                                                File No. 091 0075’’ reference both in the                                                                     lost in these and other markets as a
                                                                                                        package can be obtained from the FTC                  result of the proposed Acquisition.
                                                text and on the envelope, and should be                 Home Page (for October 29, 2009), on
                                                mailed or delivered to the following                    the World Wide Web, at (http://                       II. The Parties
                                                address: Federal Trade Commission,                      www.ftc.gov/os/2009/04/index.htm). A                     Merck is a global pharmaceutical firm
                                                Office of the Secretary, Room H-135,                    paper copy can be obtained from the                   that researches, develops, manufactures
                                                600 Pennsylvania Avenue, NW,                            FTC Public Reference Room, Room 130-                  and markets a variety of human and
                                                Washington, DC 20580. The FTC is                        H, 600 Pennsylvania Avenue, NW,                       animal health products. In 2008, Merck
                                                requesting that any comment filed in                    Washington, D.C. 20580, either in                     had worldwide revenues of $23.9
                                                paper form be sent by courier or                        person or by calling (202) 326-2222.                  billion, of which 56 percent were
                                                overnight service, if possible, because                    Public comments are invited, and may               derived from U.S. sales. In 1997, Merck
                                                U.S. postal mail in the Washington area                 be filed with the Commission in either                        ˆ
                                                                                                                                                              and Rhone-Poulenc S.A. (now Sanofi-
                                                and at the Commission is subject to                     paper or electronic form. All comments                Aventis S.A.) combined their respective
                                                delay due to heightened security                        should be filed as prescribed in the                  animal health businesses to form Merial
                                                precautions.                                            ADDRESSES section above, and must be                  Limited, a stand-alone equally-owned
                                                   The Federal Trade Commission Act                     received on or before the date specified              animal health company. Merial markets
                                                (‘‘FTC Act’’) and other laws the                        in the DATES section.                                 a comprehensive line of animal health
                                                Commission administers permit the                                                                             pharmaceuticals and vaccines for a
                                                collection of public comments to                        Analysis of Agreement Containing
                                                                                                        Consent Order to Aid Public Comment                   variety of species, including companion
                                                consider and use in this proceeding as                                                                        and production animals. The joint
                                                                                                        I. Introduction
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                                                  1FTC
                                                                                                                                                              venture generated global revenues of
                                                         Rule 4.2(d), 16 CFR 4.2(d). The comment
                                                must be accompanied by an explicit request for
                                                                                                           The Federal Trade Commission                       approximately $2.6 billion in 2008.
                                                confidential treatment, including the factual and       (‘‘Commission’’) has accepted for public                 Schering-Plough is a global
                                                legal basis for the request, and must identify the      comment an Agreement Containing                       pharmaceutical firm that researches,
                                                specific portions of the comment to be withheld         Consent Order (‘‘Consent Agreement’’)                 develops, manufactures and markets
                                                from the public record. The request will be granted
                                                or denied by the Commission’s General Counsel,
                                                                                                        from Schering-Plough Corporation                      human prescription and over-the-
                                                consistent with applicable law and the public           (‘‘Schering-Plough’’) and Merck & Co.,                counter medications, as well as animal
                                                interest. See FTC Rule 4.9(c), 16 CFR 4.9(c).           Inc. (‘‘Merck’’), and has issued a                    health products. In 2008, the company


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                                                                           Federal Register / Vol. 74, No. 216 / Tuesday, November 10, 2009 / Notices                                           58021

                                                reported worldwide revenues of                          uro-genital tract. Because infection can              absent a remedy, customers would
                                                approximately $18.5 billion, of which                   result in drops in egg production, it is              likely pay higher prices for these drugs.
                                                only $5.6 billion were derived from                     a particularly significant problem for                   The Commission’s Complaint
                                                sales of products in the United States.                 layers and breeders.                                  specifically identifies those markets that
                                                The company’s human pharmaceutical                         In addition to these commonly used                 the Commission concluded would be
                                                business, which includes oncology and                   vaccines, there are a number of other                 adversely impacted by the transaction.
                                                women’s health drugs, ranks sixteenth                   vaccines that are used in poultry                     The transaction likely affects
                                                in sales in North America. In April                     operations to a lesser degree that would              competition in numerous other existing
                                                2007, Schering-Plough acquired the                      be affected by the proposed transaction.              and future animal health product
                                                Intervet animal health business. The                    These include vaccines for infectious                 markets, but the Commission did not
                                                combined Schering-Plough/Intervet                       bursal disease, reovirus, infectious                  reach a conclusion with respect to these
                                                animal health portfolio consists of more                laryngotracheitis, coccidiosis, fowl pox,             markets as the comprehensive
                                                than a thousand pharmaceuticals and                     avian encephalomyelitis, and infectious               settlement addressed any potential
                                                vaccines for a variety of companion and                 tenosynovitis. Even though they are not               competitive concerns in these areas.
                                                production animals. Schering-Plough’s                   used as universally as the core vaccines,             IV. NK1 Receptor Antagonists
                                                animal health business generates                        these more minor vaccines play an
                                                worldwide annual revenues of                                                                                     The proposed Acquisition raises
                                                                                                        important role in many poultry
                                                approximately $3 billion.                                                                                     competitive concerns in the market for
                                                                                                        operations, as an outbreak of the disease
                                                                                                                                                              NK1 receptor antagonists for CINV and
                                                III. Animal Health Products                             can have equally disastrous economic
                                                                                                                                                              PONV. CINV is a common side effect of
                                                                                                        consequences for poultry producers.
                                                   Merck and Schering-Plough are two of                                                                       chemotherapy that can last up to six or
                                                                                                        Because of the unique characteristics of
                                                the leading animal health suppliers in                                                                        seven days after treatment. The most
                                                                                                        live and killed versions of poultry
                                                the United States, and the proposed                                                                           widely prescribed class of drugs used to
                                                                                                        vaccines, they are not considered
                                                Acquisition raises significant                                                                                treat CINV is the 5-HT3 receptor
                                                                                                        substitutes for each other.                           antagonist class. For some patients,
                                                competitive concerns in numerous U.S.
                                                animal health markets where Merck,                         The anticompetitive implications of                particularly those who receive highly
                                                through Merial Limited, and Schering-                   eliminating one of the two leading                    emetogenic chemotherapy regimes,
                                                Plough compete directly. Both                           suppliers of poultry vaccines in the                  treatment with 5-HT3 receptor
                                                companies have extensive animal health                  United States are significant. Poultry                antagonists alone may not fully relieve
                                                portfolios that include pharmaceutical                  producers have benefitted from direct                 CINV. For these patients, NK1 receptor
                                                and vaccine products for a variety of                   competition between Merial and                        antagonists in combination with 5-HT3
                                                companion and production animals.                       Schering-Plough, which has resulted in,               receptor antagonists appear to provide
                                                   The Commission initially focused its                 among other things, steeper discounts                 effective relief. Likewise, NK1 receptor
                                                animal health investigation on certain                  and lower prices for customers. The                   antagonists in combination with 5-HT3
                                                overlap markets in poultry and cattle                   remaining three market participants are               receptor antagonists can also benefit
                                                that raised significant competitive                     smaller than either Merial or Schering-               patients with PONV.
                                                concerns. In the United States, for                     Plough, and do not have the capacity                     Merck introduced the first NK1
                                                example, Merial and Schering-Plough                     that either of these firms currently                  receptor antagonist, Emend®
                                                are the two largest producers of poultry                enjoys. As a result, these other firms                (aprepitant), in 2003, and remains the
                                                vaccines, and together they account for                 would not be able to replace the                      only firm in the United States with an
                                                approximately 75 percent of U.S. sales                  competition that the proposed                         approved drug in the class. A very
                                                of poultry vaccines. Poultry vaccines are               Acquisition would eliminate. In                       limited number of other firms, including
                                                used extensively by poultry producers                   addition, because of research,                        Schering-Plough with its rolapitant,
                                                to prevent a variety of diseases that can               development and regulatory barriers,                  have NK1 receptor antagonists in
                                                either kill poultry or impede their                     entry sufficient to deter or counteract               development for CINV and PONV. At
                                                growth or development.                                  the competitive effects of the proposed               the time the proposed Acquisition was
                                                   For example, poultry producers                       transaction is unlikely to occur within               announced, Schering-Plough was in the
                                                routinely vaccinate their flocks for                    two years.                                            process of out-licensing rolapitant to a
                                                Marek’s disease, Newcastle disease and                     The proposed transaction is also                   third party. The proposed Acquisition,
                                                infectious bronchitis, the most common                  likely to result in anticompetitive harm              however, would likely diminish the
                                                diseases affecting poultry in the United                in the market for cattle gonadotropins.               combined firm’s incentive to license the
                                                States. Marek’s disease is caused by a                  These products are used to treat                      product, as rolapitant’s launch could
                                                herpes virus that affects the central                   follicular cysts in cattle and to                     have a significant impact on the
                                                nervous system and can cause lesions                    synchronize the reproductive cycles of                revenues for Merck’s first-to-market
                                                on internal organs and feather follicles.               cattle undergoing artificial                          product. The proposed Acquisition
                                                When an outbreak occurs, Marek’s                        insemination. Although there are other                could therefore delay or eliminate a
                                                disease can be deadly, and it is often                  reproductive products on the market,                  future entrant into the U.S. market for
                                                necessary to condemn the entire flock.                  these other products are used in                      NK1 receptor antagonists for CINV and
                                                Newcastle disease is a highly contagious                combination with, and not as substitutes              PONV and any benefits associated with
                                                virus characterized by gastro-intestinal,               for, cattle gonadotropins in order to                 that additional competition.
                                                respiratory and nervous signs. Because                  achieve reproductive synchronization.
                                                                                                                                                              V. Terms of the Order
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                                                it is easily transmitted and can cause                  The combination of Merial and
                                                significant damage to poultry                           Schering-Plough would result in a                        The Order issued by the Commission
                                                operations, vaccines against Newcastle                  duopoly in the market for cattle                      effectively remedies the proposed
                                                are widely administered by poultry                      gonadotropins leaving only Wyeth to                   Acquisition’s likely anticompetitive
                                                producers. A third poultry disease that                 compete with the combined firm. Thus,                 effects in the human and animal health
                                                is commonly vaccinated against is                       the proposed merger would eliminate a                 markets at issue. The Order requires
                                                infectious bronchitis, which targets not                significant competitor in the U.S.                    Merck to divest all of its interest in
                                                only the respiratory tract but also the                 market for cattle gonadotropins, and                  Merial Limited to its joint venture


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                                                58022                      Federal Register / Vol. 74, No. 216 / Tuesday, November 10, 2009 / Notices

                                                partner, Sanofi-Aventis, and requires                   businesses of Merck and Sanofi-Aventis                procedures in August 1999 to allow for
                                                Schering-Plough to divest all of the                    without the prior approval of the                     immediate implementation of an Order
                                                assets relating to its NK1 receptor                     Commission.                                           prior to a public comment period. The
                                                antagonist for CINV and PONV,                              On the human health side, the                      Commission announced that it
                                                rolapitant, to Opko Health, Inc.                        Commission is satisfied that divestiture              ‘‘contemplates doing so only in
                                                (‘‘Opko’’), within ten (10) days after the              of the assets relating to Schering-                   exceptional cases where, for example, it
                                                proposed Acquisition is consummated.                    Plough’s NK1 receptor antagonist for                  believes that the allegedly unlawful
                                                In mid-September, Merck completed the                   CINV and PONV would remedy the                        conduct to be prohibited threatens
                                                sale of its interest in Merial to Sanofi-               competitive concerns raised by the
                                                                                                                                                              substantial and imminent public harm.’’
                                                Aventis and terminated the Merial joint                 proposed transaction in that market.
                                                                                                                                                              64 Fed. Reg. 46267 (1999).
                                                venture in response to the competitive                  The Commission is satisfied that Opko
                                                concerns raised by the proposed                         is a well-qualified acquirer of the                      This case is an appropriate one in
                                                Acquisition as required by the Order.                   rolapitant assets. Opko, headquartered                which to issue a final order before
                                                   The Commission is satisfied that the                 in Florida, is a publicly traded                      receiving public comment because of
                                                divestiture of Merck’s interest in Merial               healthcare company involved in the                    the risk that Sanofi-Aventis will
                                                to Sanofi-Aventis remedies any and all                  discovery, development and                            exercise the Call Option shortly after the
                                                competitive concerns raised by the                      commercialization of pharmaceutical                   proposed Acquisition is consummated,
                                                combination of the parties’ animal                      and biological products. Opko has the                 which would reverse the animal health
                                                health businesses. Because Merck has                    financial resources and experience to                 remedy of the Consent Agreement.
                                                no animal health operations outside of                  develop and launch rolapitant, and to                 Making the Order final immediately
                                                Merial, the divestiture of Merck’s                      serve as an effective competitor in the               ensures that the safeguards embodied in
                                                interest in Merial and termination of the               market for NK1 receptor antagonists for               the Order are implemented before the
                                                Merial joint venture effectively                        CINV and PONV in the United States. If                Call Option can be exercised and
                                                eliminates all of the animal health                     the Commission determines that Opko
                                                                                                                                                              subjects the respondents to civil
                                                overlaps created by the proposed                        is not an acceptable acquirer of the
                                                                                                                                                              penalties for failing to comply with the
                                                Acquisition. The Commission is also                     assets to be divested, or that the manner
                                                satisfied that Sanofi-Aventis is a well-                of the divestitures is not acceptable, the            Order.
                                                qualified acquirer of Merck’s interest in               parties must unwind the sale and divest                  The Consent Agreement and Order
                                                Merial. Sanofi-Aventis already owned                    the assets to another Commission-                     have also been placed on the public
                                                50 percent of Merial, as Merck’s joint                  approved acquirer within six months of                record for 30 days to solicit comments
                                                venture partner, and Merial has been                    the date the Order becomes final. If                  from interested persons. Comments
                                                operating as a stand-alone business for                 Merck fails to divest within the six                  received during this period will become
                                                quite some time. Merial’s operations,                   months, the Commission may appoint a                  part of the public record. After 30 days,
                                                therefore, would continue without                       trustee to divest the relevant assets.                the Commission will again review the
                                                interruption despite the change in                         The Order includes certain provisions              Order and the comments received, and
                                                ownership.                                              to ensure that the divestiture to Opko is             may determine that the Order should be
                                                   The Order contains several provisions                successful. For example, the parties are              modified.2
                                                designed to preserve the remedial                       required to provide transitional services,
                                                benefits of the animal health divestiture               some of which may extend for up to 24                    The Commission anticipates that the
                                                to Sanofi-Aventis, most important of                    months, to enable Opko to complete                    Order, as issued, will resolve the
                                                which is the ‘‘prior approval’’ provision.              clinical testing and obtain regulatory                competitive problems alleged in the
                                                At the time the parties entered into an                 approval to market the product in the                 Complaint. The purpose of this analysis
                                                agreement to divest Merck’s shares in                   United States. The Order also allows the              is to facilitate public comment on the
                                                Merial to Sanofi-Aventis, they also                     Commission to appoint an Interim                      Order and to aid the Commission in
                                                entered into a call option agreement                    Monitor to ensure that the parties fulfill            determining whether to modify the
                                                (‘‘Call Option’’) granting Sanofi-Aventis               all of their obligations related to the               Order in any respect. This analysis is
                                                the right to combine the animal health                  divestiture of the assets.                            not intended to constitute an official
                                                businesses of Merial and Schering-                         In order to ensure, among other                    interpretation of the Consent Agreement
                                                Plough after the Acquisition is                         things, that the Commission remains                   or the Order or to modify their terms in
                                                consummated and to recreate the 50/50                   informed about the status of the                      any way.
                                                joint venture between Merck and                         rolapitant assets pending divestiture
                                                Sanofi-Aventis. The effect of the Call                  and about the efforts being made to                      By direction of the Commission, with
                                                Option, if exercised, would be to reverse               accomplish the divestiture, as well as                Commissioners Harbour and Kovacic
                                                the animal health remedy required by                    the divestiture of Merck’s interest in                recused.
                                                the Order. Consistent with Commission                   Merial and termination of the joint                   Donald S. Clark
                                                policy, the Order contains a prior                      venture, the Order requires the parties               Secretary.
                                                approval provision to address the                       to file periodic reports with the
                                                credible risk (here, the high likelihood)                                                                     [FR Doc. E9–27034 Filed 11–9–09; 8:45 am]
                                                                                                        Commission until the divestiture is
                                                that the combined Merck/Schering-                       accomplished.                                         BILLING CODE 6750–01–S
                                                Plough and Sanofi-Aventis would
                                                combine their animal health businesses                  VI. Effective Date of the Order and
                                                                                                        Opportunity for Public Comment
srobinson on DSKHWCL6B1PROD with NOTICES




                                                after the divestiture. The call option was
                                                                                                                                                                 2If the respondents do not agree to such
                                                entered into with the expectation that it                  The Commission issued the
                                                is likely to be exercised, and the firms                Complaint and the Order, and served                   modifications, the Commission may (1) initiate a
                                                                                                                                                              proceeding to reopen and modify the Order in
                                                have publicly identified the advantages                 them upon respondents at the same time
                                                                                                                                                              accordance with Rule 3.72(b), 16 CFR § 3.72(b), or
                                                of such a combination. As a result,                     it accepted the Consent Agreement for                 (2) commence a new administrative proceeding by
                                                Merck is prohibited from acquiring any                  public comment. As a result of this                   issuing an administrative complaint in accordance
                                                of Merial’s animal health assets, or in                 action, the Order has already become                  with Rule 3.11, 16 CFR § 3.11. See 16 CFR §
                                                any way combining the animal health                     effective. The Commission adopted                     2.34(e)(2).



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