FRAZER, Pa. and MELBOURNE, Australia, March 28, 2011 /PRNewswire/ -- Cephalon, Inc.
(Nasdaq: CEPH) and ChemGenex Pharmaceuticals Limited (ASX: CXS)
today jointly announced that Cephalon's wholly-owned subsidiary,
Cephalon CXS Holdings Pty Ltd, intends to make a takeover bid for
ChemGenex. ChemGenex is a hematology-focused Australian
biopharmaceutical company developing its lead product candidate,
OMAPRO™, for the treatment of chronic myeloid leukemia (CML)
patients. OMAPRO recently completed Phase III clinical trials
and ChemGenex plans to file a New Drug Application with the U.S.
Food and Drug Administration in the second half of 2011.
The takeover bid has the unanimous support of the ChemGenex
Directors who will recommend it to ChemGenex Shareholders in the
absence of a superior offer.
In October 2010, Cephalon, through
its wholly-owned subsidiary, Cephalon International Holdings, Inc.
(Cephalon International) agreed to subscribe for A$15 million of convertible notes issued by
ChemGenex and entered into call option agreements with two of
ChemGenex's major shareholders, Stragen International N.V. and
Merck Sante S.A.S. ChemGenex shareholders gave advance
approval to the conversion of the convertible notes (in accordance
with item 7 of section 611 of the Corporations Act) at a general
meeting held in December 2010.
Cephalon International has today served notice to convert its
convertible notes and exercise its call options to acquire in
aggregate 86.4 million ChemGenex Shares. This will result in
Cephalon International holding in total 27.57 percent of the issued
ChemGenex Shares.
Cephalon's takeover bid for ChemGenex will comprise two
offers:
- an offer of A$0.70 cash for each
ChemGenex Share (ASX: CXS), cum dividends and other rights;
and
- an offer of A$0.02 cash for each
ASX-listed ChemGenex Option (ASX: CXSOA).
Subject to obtaining advice on the applicable U.S. law
requirements, Cephalon will consider extending the share offer to
holders of ChemGenex American Depository Receipts (ADRs) if
compliance with those requirements is not unduly onerous or
impracticable.
The offer price of A$0.70 per
ChemGenex Share represents:
- a 59 percent premium to the last traded price of ChemGenex
Shares;
- a 58 percent premium to the one month VWAP of ChemGenex Shares
up to the date of this announcement;
- a 31 percent premium to the mid point of the valuation range of
each ChemGenex Share of A$0.46 to
A$0.61 on a controlling interest basis assessed by BDO
Corporate Finance in its Independent Expert's Report (IER)
of 15 November 2010, sent to
ChemGenex shareholders in connection with the meeting material
seeking their approval of the conversion of the convertible notes
issued to Cephalon International. The IER was prepared to
assist shareholders in considering a resolution to approve the
conversion of the convertible notes in accordance with item 7 of
section 611 of the Corporations Act; and
- a 40 percent premium to the A$0.50 conversion price of the convertible notes
issued to Cephalon and approved by the ChemGenex shareholders last
year.
"The proposed transaction allows ChemGenex shareholders to
realize cash proceeds at a significant premium to recent trading
levels and adds an interesting late-stage opportunity to our
portfolio," said Kevin Buchi, Chief
Executive Officer of Cephalon.
"The ChemGenex Board welcomes Cephalon's bid which represents an
attractive premium to the current and recent trading prices of
ChemGenex Shares. In the absence of a superior offer, the
Board will unanimously recommend that ChemGenex shareholders accept
the offer and realize value for their shares," said Brett Heading, Chairman of ChemGenex.
The takeover offers for ChemGenex Shares and Listed ChemGenex
Options will each be subject to certain normal conditions (outlined
in Appendices A, B and C), including a 90 percent minimum
acceptance condition.
ChemGenex has informed Cephalon that each ChemGenex Director
with personal holdings of ChemGenex Shares or Listed ChemGenex
Options has confirmed that he intends to accept or procure the
acceptance of the offers in respect of those ChemGenex Shares or
Listed ChemGenex Options, in the absence of a superior offer.
The total offer value for ChemGenex Shares and Listed ChemGenex
Options that Cephalon does not own is approximately A$159 million (US$163
million). The offer values all ChemGenex Shares and
options at approximately A$225
million (US$231 million).
Cephalon intends to fund the transaction consideration from
its available cash on hand.
Cephalon will finalize and mail out its Bidder's Statement and
ChemGenex will finalize and mail out its Target's Statement as soon
as practicable. Holders of ChemGenex Shares and Listed
ChemGenex Options should carefully consider those documents before
deciding whether to accept into the Cephalon takeover bid.
Cephalon is being advised by BofA Merrill Lynch and Johnson Winter & Slattery.
ChemGenex is being advised by Canaccord Genuity and McCullough Robertson.
About Cephalon, Inc.
Cephalon is a global biopharmaceutical company dedicated to
discovering, developing and bringing to market medications to
improve the quality of life of individuals around the world.
Since its inception in 1987, Cephalon has brought
first-in-class and best-in-class medicines to patients in several
therapeutic areas. Cephalon has the distinction of being one
of the world's fastest-growing biopharmaceutical companies, now
among the Fortune 1000 and a member of the S&P 500 Index,
employing approximately 4,000 people worldwide. The company
sells numerous branded and generic products around the world.
In total, Cephalon sells more than 150 products in nearly 100
countries. More information on Cephalon and its products is
available at http://www.cephalon.com/.
About ChemGenex Pharmaceuticals Limited
ChemGenex is an oncology focused biopharmaceutical company
developing small molecules with new mechanisms of action to treat
malignancies with significant unmet medical needs. A New Drug
Application is in preparation for submission to the U.S. Food and
Drug Administration in H2 2011 for omacetaxine in CML patients who
have failed two or more currently approved tyrosine kinase
inhibitors. A parallel Marketing Authorisation Application is in
preparation for submission to the European Medicines Agency in H2
2011. ChemGenex has established a corporate alliance with Hospira
Inc. to develop and commercialize omacetaxine in Europe, the Middle
East and parts of Africa,
and is seeking to establish commercial partnerships in the rest of
the world. ChemGenex plans to commercialize omacetaxine
itself in North America. ChemGenex
trades on the Australian Stock Exchange under the symbol "CXS". For
additional information on ChemGenex Pharmaceuticals, please visit
the company's website at http://www.chemgenex.com.
In addition to historical facts or statements of current
condition, this press release may contain forward-looking
statements in relation to Cephalon or ChemGenex.
Forward-looking statements provide current expectations or
forecasts of future events. These may include statements
regarding anticipated scientific progress on research programs,
development of potential pharmaceutical products, interpretation of
clinical results, prospects for regulatory approval, manufacturing
development and capabilities, market prospects for products, sales
and earnings guidance, and other statements regarding matters that
are not historical facts. You may identify some of these
forward-looking statements by the use of words in the statements
such as "anticipate," "estimate," "expect," "project," "intend,"
"plan," "believe" or other words and terms of similar meaning.
The performance and financial results of Cephalon or
ChemGenex could differ materially from those reflected in these
forward-looking statements due to general financial, economic,
regulatory and political conditions affecting the biotechnology and
pharmaceutical industries as well as more specific risks and
uncertainties facing the relevant company such as those set forth
in its recent filings with the U.S. Securities and Exchange
Commission or other applicable regulatory authorities. Given
these risks and uncertainties, any or all of these forward-looking
statements may prove to be incorrect. Therefore, you should
not rely on any such factors or forward-looking statements.
Furthermore, neither Cephalon nor ChemGenex intend to update
publicly any forward-looking statement, except as required by law .
The Private Securities Litigation Reform Act of 1995 permits this
discussion.
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Cephalon
Contacts:
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United States
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Media:
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Investor
Relations:
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Natalie de Vane
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Chip Merritt
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+1 610-727.6536
(office)
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+1 610-738-6376
(office)
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ndevane@cephalon.com
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cmerritt@cephalon.com
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Fritz Bittenbender
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Joe Marczley
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+1 610-883-5885
(office)
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+1 610-883-5894
(office)
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fbittenb@cephalon.com
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jmarczley@cephalon.com
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Australia
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David Petrie/Michael
Gregory
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Merrill Lynch
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+61 (0)3 9659 2816/+61 (0)3 9659
2343
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ChemGenex
Contacts:
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Australia
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ChemGenex
Information:
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Investor
Relations:
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Dr. Greg Collier
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Rebecca Wilson
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CEO and Managing
Director
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Buchan Consulting
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+61 419 897501 (cell
Australia)
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+61 (0)3 9866 4722
(office)
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+1 650 200 8145 (cell
USA)
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+61 (0)417 382 391
(cell)
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gcollier@ChemGenex.com
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rwilson@bcg.com.au
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Appendix A
Share Offer Conditions
Cephalon CXS's offer for ChemGenex Shares is proposed to be
subject to the fulfillment of the following conditions. Capitalised
terms have meanings set out in the glossary in Appendix C.
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(a)
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Minimum acceptance
condition
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Before and at the end of the
Offer Period, Cephalon CXS has a relevant interest in at least 90%
of ChemGenex Shares.
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(b)
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Material Adverse change
conditions
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(i)
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Material adverse change in
respect of the ChemGenex Group
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During the Condition Period, no
event, change or circumstance occurs, is announced or becomes known
to Cephalon CXS (whether or not it becomes public) which
(individually or with others) has or could reasonably be expected
to have a material adverse effect on the business, assets,
liabilities, financial position, performance, profitability or
prospects of the ChemGenex Group taken as a whole.
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(ii)
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Instances of material adverse
change in respect of the ChemGenex Group
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Without limiting paragraph (i),
during the Condition Period:
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(A)
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no event, change or circumstance
occurs, is announced or becomes known to Cephalon CXS (whether or
not it becomes public) which (individually or with others) has or
could reasonably be expected to have the effect of a diminution of
10 percent or more in the consolidated net assets of the ChemGenex
Group relative to the consolidated net assets of the ChemGenex
Group as at 31 December 2010; and
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(B)
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no member of the ChemGenex Group
discontinues, suspends or materially alters the basis of, or
announces any intention or proposal to discontinue, suspend or
materially alter the basis of, the preparation of the New Drug
Application for submission to the United States Food and Drug
Administration or the Marketing Authorisation Application for
submission to the European Medicines Agency for omacetaxine in CML
patients who are resistant to, or have failed, two or more
currently approved tyrosine kinase inhibitors.
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(iii)
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Conduct of the ChemGenex Group's
business in the ordinary course
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During the Condition Period, no
member of the ChemGenex Group conducts its business otherwise than
in the ordinary course.
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(iv)
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Instances of conduct not in the
ordinary course
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Without limiting paragraph
(iii), during the Condition Period, no member of the ChemGenex
Group:
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(A)
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acquires any one or more
entities, businesses or assets (or any interest in any one or more
entities, businesses or assets) the price, or aggregate price, of
which exceeds $1.0 million;
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(B)
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disposes any one or more
entities, businesses or assets (or any interest in any one or more
entities, businesses or assets) the price, or aggregate price, of
which exceeds $1.0 million;
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(C)
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enters into any agreement
involving a commitment greater than $1.0 million or the term of
which cannot be terminated within 6 months;
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(D)
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incurs or commits to, or grants
to another person a right the exercise of which would involve
incurring or committing to, any capital expenditure in respect of
any one or more items which, or the aggregate amount of which,
exceeds $1.0 million;
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(E)
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incurs any indebtedness or
issues any debt securities other than:
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(aa)
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to another member of the
ChemGenex Group; or
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(bb)
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trade credit in the ordinary
course of business;
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(F)
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releases or materially varies
any obligation owing to it by any person which by reason of its
quantum or its nature is material to the ChemGenex Group taken as a
whole;
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(G)
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enters into any joint venture,
shareholders, partnership or strategic alliance
agreement;
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(H)
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gives a financial benefit to any
related party of ChemGenex with the meaning of Chapter 2E of the
Corporations Act;
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(I)
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employs or appoints any director
or employee in respect of which the total annual employment or
appointment costs of that person would exceed $150,000 (other than
to replace on substantially similar terms, including as to
remuneration and benefits, a person who has ceased to be an
employee of any member of the ChemGenex Group);
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(J)
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does any of the
following:
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(aa)
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makes any change in the basis or
amount of the remuneration of, or otherwise varies in any material
respect the employment or appointment arrangements of, any employee
or director, other than in the ordinary course of business and
consistent with past practice;
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(bb)
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accelerates the rights of any
director or employee to compensation or benefits of any
kind;
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(cc)
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pays any bonus or pays or
provides any termination, retention or retirement payment or other
benefit to any director or employee, except as required by law, in
accordance with the terms of an agreement disclosed to Cephalon CXS
prior to the Announcement Date or in accordance with any
entitlement under the terms of any superannuation, provident or
retirement scheme in effect as at the Announcement Date;
or
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(dd)
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enters into, or makes any
amendment to, any deed of indemnity, access and insurance (or
similar arrangement) in favour of any director or
employee;
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(K)
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does any of the
following:
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(aa)
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licenses any of its intellectual
property to any person other than a member of the ChemGenex
Group;
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(bb)
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enters into any agreement
pursuant to which it agrees to undertake any research and
development for any person other than a member of the ChemGenex
Group; or
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(cc)
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takes a licence of intellectual
property of any person other than a member of the ChemGenex Group;
or
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(L)
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discloses the existence of any
matter described in sub-paragraphs (A) to (K) above, or agrees,
offers or authorises, or announces any intention or proposal, to do
anything described in sub-paragraphs (A) to (K) above, except to
the extent fully and accurately announced by ChemGenex to the ASX
prior to the Announcement Date.
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(v)
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Exclusions
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None of paragraphs (i) to (iv)
shall apply to any action which is taken by ChemGenex in accordance
with the terms of any Unlisted Option Cancellation Letter or is
otherwise taken with the prior written consent of Cephalon
CXS.
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(c)
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Change of control
conditions
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(i)
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No change of control event
triggered
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During the Condition Period, as
a result (directly or indirectly) of the acquisition or proposed
acquisition of ChemGenex Shares by Cephalon CXS:
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(A)
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no person becomes entitled to
exercise, exercises or purports to exercise, or states any
intention to exercise, any right under any provision of any
agreement or other instrument to which any member of the ChemGenex
Group is a party, or by or to which any member of the ChemGenex
Group or any of its assets may be bound or be subject, which right,
upon its exercise, results or would result, or could reasonably be
expected to result, to an extent which is material to the ChemGenex
Group taken as a whole, in:
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(aa)
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any such agreement or other
instrument being terminated or varied or any action being taken or
arising under it;
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(bb)
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the interest of any member of
the ChemGenex Group in any partnership, joint venture, trust,
corporation or other entity (or any arrangements relating to such
interest) being terminated, varied or required to be transferred or
redeemed; or
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(cc)
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the business of any member of
the ChemGenex Group being materially adversely affected;
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(B)
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no Approval issued by a
Regulatory Authority to or otherwise held by any member of the
ChemGenex Group is or is able to be revoked, withdrawn, terminated
or varied such that it:
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(aa)
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results, or could reasonably be
expected to result, in a material adverse effect on the business,
assets, liabilities, financial position, performance, profitability
or prospects of the ChemGenex Group taken as a whole; or
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(bb)
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prevents or materially adversely
affects or could reasonably be expected to prevent or materially
adversely affect the implementation or completion of the Offer;
and
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(C)
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without limiting any of the
foregoing, no Regulatory Authority becomes entitled to suspend,
terminate or withhold any grant, development assistance or other
financial assistance to which any member of the ChemGenex Group is
or may be otherwise entitled or to require or accelerate repayment
of any grant, development assistance or other financial assistance
previously provided to any member of the ChemGenex
Group.
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(d)
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HSR
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No objection being received and
the period of 30 days expiring (or earlier terminated) from the
date of the filing by Cephalon CXS of a merger / acquisition
notification as required under the US Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
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(e)
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No prescribed
occurrences
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(i)
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Between the time beginning when
the Bidder's Statement is given to ChemGenex and ending at the end
of the Offer Period, none of the following occurrences
happens:
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(A)
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ChemGenex converts all or any of
the ChemGenex Shares into a larger or smaller number of ChemGenex
Shares;
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(B)
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any member of the ChemGenex
Group resolves to reduce its share capital in any way;
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(C)
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any member of the ChemGenex
Group enters into a buy-back agreement or resolves to approve the
terms of a buy-back agreement under section 257C(1) or 257D(1) of
the Corporations Act;
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(D)
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any member of the ChemGenex
Group issues shares (other than pursuant to Disclosed Options or
the convertible notes on issue to Cephalon International) or grants
an option over its shares, or agrees to make such an issue or grant
such an option;
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(E)
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any member of the ChemGenex
Group issues, or agrees to issue, convertible notes;
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(F)
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any member of the ChemGenex
Group disposes, or agrees to dispose, of the whole, or a
substantial part, of its business or property;
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(G)
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any member of the ChemGenex
Group charges, or agrees to charge, the whole, or a substantial
part, of its business or property;
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(H)
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any member of the ChemGenex
Group resolves to be wound up;
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(I)
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a liquidator or provisional
liquidator is appointed to any member of the ChemGenex
Group;
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(J)
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a court makes an order for the
winding up of any member of the ChemGenex Group;
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(K)
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an administrator is appointed to
any member of the ChemGenex Group under section 436A, 436B or 436C
of the Corporations Act;
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(L)
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any member of the ChemGenex
Group executes a deed of company arrangement; or
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(M)
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a receiver, or a receiver and
manager, is appointed in relation to the whole, or a substantial
part, of the property of any member of the ChemGenex
Group.
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(ii)
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During the Condition
Period:
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(A)
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none of the events listed in
Condition (e)(i) happens;
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(B)
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no member of the ChemGenex Group
undertakes a transaction similar to any of those referred to in
Condition (e)(i) under the law of its place of
incorporation;
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(C)
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no administrator, or person
performing a function similar to an administrator appointed under
section 436A, 436B or 436C of the Corporations Act, is appointed in
respect of a member of the ChemGenex Group under a provision
equivalent to any of those sections of the Corporations Act under
the law of the place of incorporation of the subsidiary;
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(D)
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no member of the ChemGenex Group
enters into an arrangement similar to that referred to in Condition
(e)(i)(L), or any other composition with creditors, under the law
of the place of incorporation of the subsidiary;
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(E)
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no member of the ChemGenex Group
issues or grants:
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(aa)
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any performance rights or other
equity-based incentive; or
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(bb)
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any security which is
convertible into ChemGenex shares and which is not referenced in
any of the preceding paragraphs or sub-paragraphs of this
Appendix;
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(F)
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ChemGenex does not declare or
pay any dividend or other distribution;
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(G)
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no amendment is made to the
constitution of ChemGenex;
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(H)
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in relation to Unlisted Option
Cancellation Letters:
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(aa)
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the ASX grants a waiver in
respect of Listing Rule 6.23.2 to permit the cancellation of
options pursuant to the Unlisted Option Cancellation Letters;
and
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(bb)
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no Unlisted Option Cancellation
Letter is terminated or amended and no rights of ChemGenex under
any Unlisted Option Cancellation Letter are waived or released by
ChemGenex;
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(I)
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no member of the ChemGenex Group
discloses the existence of any matter described in Condition (e)(i)
or sub-paragraphs (A) to (H) of this Condition (e)(ii), or agrees,
offers or authorises, or announces any intention or proposal, to do
anything described in Condition (e)(i) or sub-paragraphs (A) to (H)
of this Condition (e)(ii); and
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(J)
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there is no announcement or
other disclosure, and it does not otherwise become known to
Cephalon CXS, that any options or other convertible securities or
performance rights were in existence as at the Announcement Date
other than Disclosed Options.
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(f)
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Inter-conditionality
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The Option Offer having become
or having been declared free of all conditions (other than
condition (f) of those conditions).
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Each of the conditions in each paragraph and sub-paragraph above
constitutes and is to be constituted as a separate, several and
distinct condition and will not be taken to limit the meaning or
effect of any other condition.
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Appendix
B
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Listed
Option Offer Conditions
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Cephalon CXS's offer for ChemGenex Listed Options is proposed to
be subject to the fulfillment of conditions which are the same as
the conditions in Appendix A except that Share Offer Conditions (a)
and (f) are replaced, respectively, with the following:
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(a)
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Minimum acceptance
condition
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Before and at the end of the
Offer Period, Cephalon CXS has a relevant interest in at least 90%
of ChemGenex Listed Options.
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(f)
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Inter-conditionality
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The Share Offer having become or
having been declared free of all conditions (other than condition
(f) of those conditions).
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This is a non-waivable
condition.
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Announcement means the announcement of the Share Offer
and Listed Option Offer which was jointly released by Cephalon,
Inc. and ChemGenex Pharmaceuticals Limited on the Announcement
Date.
Announcement Date means 29 March
2011, being the date of the Announcement.
Approval means a licence, authority, authorisation,
consent, permission, approval, clearance, grant, confirmation,
order, exemption, no objection, waiver or ruling.
ASIC means the Australian Securities and Investments
Commission.
ASX means ASX Limited ACN 008 624 691.
Bidder's Statement means the statement to be made by
Cephalon CXS under Part 6.5 Division 2 of the Corporations Act
relating to the Share Offer and Option Offer.
Cephalon CXS means Cephalon CXS Holdings Pty Ltd (ACN 150
102 659).
ChemGenex means ChemGenex Pharmaceuticals Limited (ACN
000 248 304).
ChemGenex Group means ChemGenex and its subsidiaries from
time to time.
ChemGenex Listed Option means an ASX-listed option of
ChemGenex.
ChemGenex Share means an ordinary share of ChemGenex.
Condition Period means the Listed Option Offer Condition
Period or Share Offer Condition Period, as the context
requires.
Corporations Act means the Corporations Act 2001
(Cth).
Disclosed Options means:
- ChemGenex Listed Options; and
- unlisted options over unissued ChemGenex Shares the existence
of which was disclosed in the copy of the option register disclosed
by ChemGenex to Cephalon CXS on 28 March
2011.
Listed Option Offer means the offer by Cephalon CXS to
acquire ChemGenex Listed Options on the Listed Option Offer
Conditions.
Listed Option Offer Conditions means the terms and
conditions of the Listed Option Offer to be set out in the Bidder's
Statement.
Listed Option Offer Condition Period means the period
beginning on the Announcement Date and ending at the end of the
Listed Option Offer Period.
Listed Option Offer Period means the period during which
the Listed Option Offer remains open.
Offer means the Listed Option Offer or Share Offer, as
the context requires.
Offer Period means the Listed Option Offer Period or the
Share Offer Period, as the context requires.
Regulatory Authority means any governmental,
semi-governmental, administrative, statutory or judicial entity,
authority or agency, whether in Australia or elsewhere, including any
self-regulatory organisation established under statute or any stock
exchange but excluding the Takeovers Panel, ASIC and any court that
hears or determines proceedings under section 657G of the
Corporations Act or proceedings commenced under the Corporations
Act by a person specified in section 659B(1) in relation to the
Share Offer or Listed Option Offer.
Share Offer means the offer by Cephalon CXS to acquire
ChemGenex Shares on the Share Offer Conditions.
Share Offer Conditions means the terms and conditions of
the Share Offer to be set out in the Bidder's Statement.
Share Offer Condition Period means the period beginning
on the Announcement Date and ending at the end of the Share Offer
Period.
Share Offer Period means the period during which the
Share Offer remains open.
subsidiary has the meaning given to it in the
Corporations Act.
Target's Statement means the statement to be made by
ChemGenex in response to the Bidder's Statement, as required by the
Corporations Act.
Unlisted Option Cancellation Letters means the letter
agreements entered into on or about the Announcement Date between
ChemGenex and certain employees and directors of members of the
ChemGenex Group relating to the cancellation of unlisted options
over unissued ChemGenex Shares conditional on receipt of an ASX
waiver of Listing Rule 6.23.2, the Share Offer becoming or being
declared unconditional and Cephalon CXS acquiring voting power in
ChemGenex of at least 50.1%.
Any reference to "$" or "dollars" is to Australian currency
unless otherwise stated.
SOURCE Cephalon, Inc.; ChemGenex Pharmaceuticals Limited
