This is a story of "what's not there" -- in the Schering-Plough "History of the Negotiations" deal disclosures. Consider, for example, "what is there" -- in the Pfizer-Wyeth deal. The differences are truly telling.
This is from the latest SEC Form S-4 (at page 60) filed by Pfizer, as it seeks to acquire Wyeth:
. . . .Between January 14 and January 16, 2009, representatives of Pfizer and Wyeth continued to negotiate the key parameters of a transaction, including that Pfizer would not enter into exclusive arrangements with more than five lenders that would preclude such lending firm from participating in the financing of a possible proposal by a third party in competition with Pfizer’s proposal for Wyeth, would agree to certain restrictions designed to have Pfizer conserve cash prior to a closing in an effort to ensure that the minimum ratings condition was satisfied and that the termination fee payable by Wyeth in the event of circumstances involving a third-party acquisition proposal would be tiered with the lower fee equal to $1.5 billion, and the higher fee equal to $2.0 billion. . . .
Tie-ups with no more than five lenders for the acquiror, as exclusive arrangers -- along with efforts to protect and preserve cash levels, to ensure favorable future debt ratings reviews. [Wachtell Lipton is in on this deal, too.] Both would make higher offers less cumbersome -- thus allowing the boards of both companies to easily satisfy their fiduciary duties. [And, not incidentally, to more easily allow all shareholders to benefit from a truly superior-priced offer.]
Equally importantly, in this vein, note the lower termination fees, even though Pfizer's Wyeth deal is a larger deal (at $68 billion v. $41 billion, for Merck-Schering-Plough).
Each of these considerations is nowhere to be found in the Schering-Plough "Background of the Transaction" section of tonight's preliminary Form S-4. No, there the focus appeared to be "be sure we get some deal -- any deal -- done."
On termination fees, in the Schering-Plough deal (page 58):
. . . .After further discussion among the advisors for Merck and Schering-Plough, Merck and Schering-Plough agreed to an increase in the financing termination fee to $2.5 billion and that the general termination fee would be reduced to $1.25 billion. . . .
Unfortunate, in the extreme -- and telling -- of the "deal-doing" accumen of internal management at Pfizer v. Schering-Plough.