- Additional Proxy Soliciting Materials (definitive) (DEFA14A)
22 March 2011 - 7:31AM
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. )
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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)
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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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(2
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Aggregate number of securities to which transaction applies:
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(3
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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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CPEX ADVISES STOCKHOLDERS TO VOTE TODAY FOR THE
ALL-CASH, PREMIUM FCB TRANSACTION
Merger Agreement with FCB Represents Most Compelling Opportunity to
Immediately and With Certainty Realize Maximum Value
Special Meeting to be Held Thursday, March 24
th
Stockholders Should Not Delay
in Voting FOR the Merger Agreement
Exeter, NH, March 21, 2011
CPEX Pharmaceuticals, Inc. (NASDAQ: CPEX) today advised
stockholders to vote now FOR the all-cash, premium merger agreement with FCB I Holdings Inc.
(FCB). Stockholders will receive $27.25 per share if the merger agreement is approved. The
special meeting of stockholders to approve the transaction is being held on March 24, 2011.
Stockholders should not delay in voting FOR the transaction.
CPEX urges stockholders to consider the following regarding the FCB transaction:
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Certainty of Value
The fully financed merger agreement represents the most
compelling opportunity for stockholders to immediately and with certainty realize
maximum after-tax value for their shares.
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Significant Premium
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 trading price of CPEXs shares on the date prior to the announcement of the merger.
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§
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Support From The Leading Independent Proxy Advisory Firm
The independent proxy
firm ISS Proxy Advisory Services (ISS) recommends that stockholders approve the
merger agreement with FCB. In particular, ISS recommended that CPEX stockholders vote
FOR the merger agreement with FCB based on its premium to shareholders, thorough
exploration of strategic alternatives and certainty of value from the all-cash
consideration.
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Comprehensive and Rigorous Review Process of All Strategic Alternatives
The
proposed transaction with FCB is the result of an exhaustive eight-month review process
during which the CPEX Board
which consists of four independent directors out of a
total of five
considered all strategic options to maximize value for stockholders.
As a result of its thorough analysis, and in consultation with its financial and legal
advisors, the Board unanimously concluded that the FCB transaction represents the most
compelling opportunity for stockholders to immediately receive a substantial premium for
their CPEX shares.
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EACH STOCKHOLDERS VOTE IS IMPORTANT NO MATTER
HOW MANY SHARES THEY OWN
While the special meeting of stockholders will be held on March 24, 2011, stockholders can
vote at any time FOR the merger agreement with FCB. 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
.
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), 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.
*****
The press release above was issued on March 21, 2011
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