- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
March 11 2011 - 7:40AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant
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Filed by a Party other than the Registrant
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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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CPEX Pharmaceuticals, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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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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(5)
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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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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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Investor Contacts:
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Press Contacts:
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Bob Hebert
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Andrew Cole/Chris Kittredge
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Chief Financial Officer
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Sard Verbinnen & Co
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CPEX Pharmaceuticals, Inc.
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212.687.8080
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603.658.6100
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Amy Bilbija
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MacKenzie Partners
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212.929.5802
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ISS PROXY ADVISORY SERVICES RECOMMENDS THAT CPEX STOCKHOLDERS
VOTE FOR MERGER AGREEMENT WITH FCB I HOLDINGS
Leading Independent Proxy Advisory Firm Confirms
FCB Transaction Is in the Best Interests of Stockholders
Exeter, NH, March 11, 2011
CPEX Pharmaceuticals, Inc. (NASDAQ: CPEX) today
announced that ISS Proxy Advisory Services (ISS), a leading independent proxy advisory firm, has
recommended that CPEX stockholders vote FOR CPEXs proposed merger agreement with FCB I Holdings
Inc. (FCB), under which CPEX stockholders will receive $27.25 per share in cash. The transaction
price represents 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 the Company,
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.
In its report, ISS said: The proposed transaction is in the best interest of shareholders
because it offers a significant premium to the unaffected share price, brings certainty of value
through its all-cash consideration, and resulted from a lengthy and apparently thorough exploration
of strategic alternatives. While several shareholders have publicly expressed opposition to the
valuation, and one of these shareholders has proposed recapitalization strategies it believes will
bring shareholders higher value, these strategies also carry additional execution, tax, litigation,
and market risks (some of which have already begun to play out) which make realization of value
less certain.
ISS cites three primary reasons for recommending that stockholders vote FOR the transaction:
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The cash consideration represents a premium to shareholders;
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The company has conducted a thorough exploration of strategic alternatives; and
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The all cash consideration would give the shareholders certainty of value, while
the alternatives suggested by Mangrove Partners would be subject to risks associated
with the market for the companys primary product as well as ongoing litigation.
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In commenting on Mangrove Partners opinion that CPEX should restructure the Company on a
standalone basis, ISS stated: ... the all-cash consideration gives shareholder certainty of value,
which may not be realized if shareholders opt instead for a recapitalization and standalone
strategy, given the execution, tax, litigation, and competitive risks associated with any
standalone strategy.
James R. Murphy, Chairman of the Board of CPEX, commented, We are very pleased that ISS, one
of the nations leading proxy advisory firms, recognizes the value of the FCB transaction and
recommends that CPEX stockholders vote in favor of the merger agreement with FCB. The ISS report
confirms our Board of Directors unanimous view that the FCB transaction is the most compelling
opportunity for stockholders to immediately and with certainty realize the maximum after-tax value for their shares.
In a separate report, proxy service Glass Lewis & Co. published an opinion regarding CPEXs
proposed merger agreement with FCB. Commenting on the report, Murphy said, We are disappointed
that Glass Lewis issued a report which we believe reaches the wrong conclusion based upon its
misguided underlying assumption that a merger transaction of a single asset royalty company can be
accurately evaluated through the use of comparable transactions, when in reality, differing facts
and circumstances, especially the facts and circumstances surrounding this transaction, make such
an analysis virtually irrelevant. We recommend that stockholders follow ISS report and vote FOR
the merger agreement with FCB.
On March 24, 2011, CPEX Pharmaceuticals is holding a special meeting of stockholders to vote
on a 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 you are able to attend the special
meeting in person, please follow the instructions on the form of proxy mailed to you and submit
your 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 you have Internet access, we encourage you to
record your vote via the Internet. This action will not limit your right to vote in person at the
special meeting.
If stockholders have any questions or need assistance voting your 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.
Permission to use quoted material was neither sought nor obtained.
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),
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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.
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The press release above was issued on March 11, 2011
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