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8-K - FORM 8-K - CPEX Pharmaceuticals, Inc. | b85610ae8vk.htm |
EX-99.2 - EX-99.2 - CPEX Pharmaceuticals, Inc. | b85610aexv99w2.htm |
EX-99.3 - EX-99.3 - CPEX Pharmaceuticals, Inc. | b85610aexv99w3.htm |
Exhibit
99.1
Investor Contacts:
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Press Contacts: | |
Bob Hebert
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Andrew Cole/Chris Kittredge | |
Chief Financial Officer
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Sard Verbinnen & Co | |
CPEX Pharmaceuticals, Inc.
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212.687.8080 | |
603.658.6100 |
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Amy Bilbija |
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MacKenzie Partners |
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212.929.5802 |
CPEX PHARMACEUTICALS CONTINUES TO RECOMMEND THAT
STOCKHOLDERS VOTE FOR THE MERGER AGREEMENT WITH FCB
STOCKHOLDERS VOTE FOR THE MERGER AGREEMENT WITH FCB
CPEX Board Recommends Stockholders Vote FOR the FCB Merger Agreement
and Determines that Mangrove Partners March 14 Alternative Proposal Would
Not Lead to a Transaction Superior to the Merger with FCB
and Determines that Mangrove Partners March 14 Alternative Proposal Would
Not Lead to a Transaction Superior to the Merger with FCB
Exeter, NH, March 17, 2011 CPEX Pharmaceuticals, Inc. (NASDAQ: CPEX) today
announced that its Board of Directors has completed its review of the unsolicited, non-binding
letter (the Mangrove Letter) received from Mangrove Partners (Mangrove) on March 14, 2011
regarding a potential alternative transaction involving a recapitalization of CPEX (the
Alternative Proposal), and unanimously believes that the merger agreement with FCB I Holdings
Inc. (FCB) continues to be the most compelling opportunity for stockholders to immediately and
with certainty realize the maximum after-tax value for their shares.
Consistent with its fiduciary duties and CPEXs merger agreement with FCB, the CPEX Board
reviewed the Mangrove Letter in consultation with outside legal counsel and financial advisors and
based on its evaluation has determined not to engage in discussions with Mangrove regarding the
Alternative Proposal. The Board also reaffirmed its recommendation that stockholders vote FOR the
merger agreement with FCB. In making this determination, the Board concluded that the Alternative
Proposal described in the Mangrove Letter is not, and is not reasonably likely to lead to, a
transaction that is both financially more favorable to the CPEX stockholders than the merger with
FCB and reasonably capable of being consummated. In reaching this conclusion, the Board determined
that the Alternative Proposal lacked certainty of financing and contains flawed valuation
assumptions:
Financing is Not Committed and is Highly Conditional There are no commitment letters
from Mangroves supposed financing sources, one of Mangroves potential financing sources
has already withdrawn due to a legal conflict, and the Alternative Proposal is subject to
due diligence.
Dividend Amount and Equity Values Overstated The Board believes the Alternative
Proposal would not generate sufficient cash to pay the $28.00 special dividend. Mangroves
terms do not appear to properly contemplate expected cash uses such as transaction fees and
expenses, financing fees, Mangroves own proposed interest reserve
requirements, the merger
agreement termination fee, or any cash reserves for operations. When properly considered,
the special dividend would be approximately $2.25 per share less than suggested in
Mangroves Alternative Proposal. Additionally, Mangroves assumed
valuations for the proposed warrants and equity in CPEX after the recapitalization are
overly optimistic and do not account for the fact that actual debt service consumes all cash
flows for the next six to seven years. Any residual equity value would be contingent on
cash flows being generated beyond that period.
Value of Notes at Risk of Impairment Mangroves Alternative Proposal requires that
CPEX operate with a less than appropriate amount of cash on hand. Maintaining insufficient
cash significantly increases the risk of financial distress and possibly default, which
would impair the value of the Notes in the Rights offering, further diminishing the implied
value of this proposal.
The CPEX Board strongly believes that the merger with FCB continues to be in the best
interests of CPEX stockholders and reaffirms its unanimous recommendation that stockholders vote
FOR the proposal to approve the merger agreement. Stockholders will receive $27.25 per share in
cash for each of their CPEX shares if the merger is approved. This is a 142% premium over the price
of CPEX shares on January 7, 2010, the day prior to the date a third party publicly stated its
intention to make an unsolicited offer for CPEX, and a premium of approximately 12% over the
60-trading day average closing price of CPEXs shares on the date prior to the announcement of the
merger with FCB.
On March 24, 2011, CPEX is holding a special meeting of stockholders to vote on the proposal
to approve the FCB merger agreement. Adoption and approval of the transaction requires the
affirmative vote of a majority of the outstanding shares of CPEX common stock entitled to vote at
the special meeting. Therefore, failure to vote will have the same effect as a vote against the
adoption of the merger agreement. Whether or not stockholders are able to attend the special
meeting in person, stockholders should follow the instructions on the form of proxy mailed to them
and submit their proxy via the Internet or by telephone, or complete, sign and date the proxy and
return it in the envelope provided as soon as possible. If stockholders have Internet access, they
are encouraged to record their vote via the Internet. This action will not limit stockholders
rights to vote in person at the special meeting. If stockholders have any questions or need
assistance voting their shares, they should contact MacKenzie Partners, Inc., the Companys proxy
solicitor, at (800) 322-2885 or (212) 929-5500 (call collect) or at cpex@mackenziepartners.com.
About CPEX Pharmaceuticals, Inc.
CPEX Pharmaceuticals, Inc. is an emerging specialty pharmaceutical company focused on the
development, licensing and commercialization of pharmaceutical products utilizing CPEXs validated
drug delivery platform technology. CPEX has U.S. and international patents and other proprietary
rights to technology that facilitates the absorption of drugs. CPEX has licensed applications of
its proprietary CPE-215® drug delivery technology to Auxilium Pharmaceuticals, Inc.
which launched Testim, a topical testosterone gel, in 2003. CPEX maintains its headquarters in
Exeter, NH. For more information about CPEX, please visit www.cpexpharm.com.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
CPEX has filed with the Securities and Exchange Commission (the SEC) and furnished to its
stockholders a definitive proxy statement in connection with the proposed transaction with FCB
(the
Definitive Proxy Statement). This communication may be deemed to be solicitation material in
respect of the merger with FCB. Investors and security holders of CPEX are urged to read the
Definitive Proxy Statement and the other relevant materials (when they become available) because
such materials will contain important information about CPEX and the proposed transaction with
FCB. The Definitive Proxy Statement and other relevant materials (when they become available), and
any and all other documents filed by CPEX with the SEC, may be obtained free of charge at the SECs
website at www.sec.gov. In addition, investors and security holders may obtain free copies
of the documents CPEX files with the SEC by directing a written request to CPEX Pharmaceuticals,
Inc., 2 Holland Way, Exeter, NH 03833, Attention: Chief Financial Officer. Copies of CPEXs
filings with the SEC may also be obtained at the Investors section of CPEXs website at
www.cpexpharm.com/investor.htm.
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT AND THE OTHER
RELEVANT MATERIALS (WHEN THEY BECOME AVAILABLE) BEFORE MAKING ANY VOTING OR INVESTMENT DECISION
WITH RESPECT TO THE PROPOSED TRANSACTION WITH FCB.
CPEX and its directors and executive officers may be deemed to be participants in the
solicitation of proxies from the security holders of CPEX in connection with the proposed
transaction with FCB. Information about those directors and executive officers of CPEX, including
their ownership of CPEX securities, is set forth in the Definitive Proxy Statement (filed with the
SEC on February 4, 2011) and in the proxy statement for CPEXs 2010 Annual Meeting of Stockholders
(filed with the SEC on April 9, 2010), as supplemented by other CPEX filings with the SEC.
Investors and security holders may obtain additional information regarding the direct and indirect
interests of CPEX and its directors and executive officers in the proposed transaction with FCB by
reading the proxy statements and other public filings referred to above.
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS
Certain items in this document may constitute forward-looking statements within the meaning of
the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These
forward-looking statements involve certain risks and uncertainties that could cause actual results
to differ materially from those indicated in such forward-looking statements, including, but not
limited to: the proposed transaction with FCB; the performance of CPEX; the benefits of the
proposed transaction with FCB and such other risks and uncertainties as are detailed in the
Definitive Proxy Statement, in CPEXs Annual Report on Form 10-K filed with the SEC on March 29,
2010, and in the other reports that CPEX periodically files with the SEC. Copies of CPEXs filings
with the SEC may be obtained by the methods described above. CPEX cautions investors not to place
undue reliance on the forward-looking statements contained in this document or other filings with
the SEC.
The statements in this document reflect the expectations and beliefs of CPEXs management only
as of the date of this document and subsequent events and developments may cause these expectations
and beliefs to change. CPEX undertakes no obligation to update or revise these statements, except
as may be required by law. These forward-looking statements do not reflect the potential impact of
any future dispositions or strategic transactions, including the proposed transaction with FCB,
that may be undertaken. These forward-looking statements should not be relied upon as representing
CPEXs views as of any date after the date of this document.