Exhibit 10.1
EXECUTION VERSION
Dated July 29, 2009
CALL OPTION AGREEMENT
MERCK & CO., INC.
and
SCHERING-PLOUGH CORPORATION
and
SANOFI-AVENTIS
CALL OPTION AGREEMENT
Call Option Agreement, dated as of July 29, 2009, among:
(1)
Schering-Plough Corporation, a corporation organized under the laws of New
Jersey ("Schering-Plough");
(2)
Merck & Co., Inc., a corporation organized under the laws of New Jersey
("Merck");
-and-
(3)
Sanofi-Aventis, a société anonyme organized under the laws of France
("Sanofi-Aventis")
(Schering-Plough, Merck and Sanofi-Aventis are hereinafter referred to
individually as a "Party" and collectively as the "Parties").
WHEREAS
(A)
Merck and Schering-Plough are parties to that certain Agreement and Plan of
Merger, dated March 8, 2009 (the "Merger Agreement"), by and among
Schering-Plough, Merck and two Subsidiaries of Schering-Plough formed to execute
the merger of one of the Subsidiaries into Schering-Plough such that
Schering-Plough is the surviving corporation in such merger and the other
Subsidiary into Merck such that Merck is the surviving corporation in such
merger (the "Merger") and becomes a wholly-owned Subsidiary of Schering-Plough;
(B)
Each of Merck and Sanofi-Aventis owns, indirectly, 50% of the outstanding equity
interests in Merial Limited, a private company limited by shares organized under
the laws of England and domesticated in Delaware as a limited liability company
("Merial"). Merial and its Subsidiaries are engaged in the discovery and
development, manufacturing, marketing and sale of pharmaceutical, biological and
medicinal products to enhance the health or performance of animals
(collectively, the "Merial Business");
(C)
Schering-Plough and its Subsidiaries are engaged in the animal health business,
including discovery and development, manufacturing and sale of veterinary
products in all major food producing and companion animal species (collectively,
the "I/SP Business"), which is conducted through Intervet Holdings B.V.,
Intervet, Inc. and certain other Subsidiaries of Schering-Plough (the "I/SP
Entities");
(D)
Merck and Sanofi-Aventis have agreed, pursuant to a share purchase agreement,
dated as of the date hereof (the "Share Purchase Agreement"), by and among
Sanofi-Aventis, Merck and certain of Merck's Subsidiaries, that certain of
Merck's Subsidiaries will sell to Sanofi-Aventis or a Subsidiary of
Sanofi-Aventis and Sanofi-Aventis or such Subsidiary will buy from Merck's
Subsidiaries, all of the equity interests in Merial owned by Merck and its
Subsidiaries (the "Merial Equity Interests") such that Sanofi-Aventis will then
own, directly or indirectly, all of the outstanding equity interests in Merial;
and
(E)
Subject to and upon the terms and conditions described in this Agreement,
Schering-Plough offers herein to Sanofi-Aventis an option, and Sanofi-Aventis
accepts such option (without undertaking to exercise it), to, following the
completion of the Merger and the acquisition by Sanofi-Aventis of the Merial
Equity Interests pursuant to the Share Purchase Agreement, cause the I/SP
Entities, which would, at the Closing, collectively conduct all of the I/SP
Business, to be combined with Merial (by way of contribution) upon the terms and
conditions described in this Agreement, as a result of which Sanofi-Aventis and
Schering-Plough would each, directly or indirectly, hold 50% of the equity
interests in such combined company.
Now, Therefore, in