Forest Laboratories, Inc. (NYSE: FRX) today announced the
commencement of a tender offer by its indirect wholly-owned
subsidiary, Magnolia Acquisition Corp. (“Magnolia”), for all
outstanding shares of common stock, $0.01 par value, of Clinical
Data, Inc. (NASDAQ: CLDA) for $30.00 per share in cash (the
“Upfront Consideration”) plus contingent consideration of up to
$6.00 per share (the “Contingent Consideration”) that may be paid
pursuant to the terms of a Contingent Value Agreement to be entered
into by Forest, FL Holding CV, an indirect wholly-owned subsidiary
of Forest, and Magnolia for the benefit of tendering security
holders based upon achievement of certain milestones related to
Viibryd™, and for certain outstanding notes and warrants issued by
Clinical Data that are convertible into or exerciseable for shares
of Clinical Data’s common stock for the consideration described
below. The tender offer is being made pursuant to an Offer to
Purchase, dated March 8, 2011, and in connection with the
previously announced Agreement and Plan of Merger, dated February
22, 2011, by and among Forest, FL Holding CV, Magnolia, and
Clinical Data.
In addition to shares of Clinical Data common stock, Forest is
offering to purchase in the tender offer all of the
outstanding:
- warrants, dated August 31, 2006, issued
by Clinical Data to Laurus Master Fund, Ltd. (the “Laurus
Warrants”) for an upfront price of $10.00 multiplied by the number
of shares of common stock subject to such Laurus Warrants as of
immediately prior to the first time at which Magnolia accepts for
payment any securities tendered pursuant to the tender offer (the
“Acceptance Time”) and the Contingent Consideration for each of
such shares;
- warrants issued by Clinical Data
pursuant to that certain Securities Purchase Agreement, dated as of
November 17, 2005, between Clinical Data and the investors named
therein (the “2005 Warrants”) for an upfront price of $14.90
multiplied by the number of shares of common stock subject to such
2005 Warrants as of immediately prior to the Acceptance Time and
the Contingent Consideration for each of such shares;
- warrants issued by Clinical Data
pursuant to that certain Securities Purchase Agreement, dated as of
June 13, 2006, between Clinical Data and the investors named
therein (the “2006 Warrants”) for an upfront price of $17.71
multiplied by the number of shares of common stock subject to such
2006 Warrants as of immediately prior to the Acceptance Time and
the Contingent Consideration for each of such shares;
- warrants issued by Clinical Data
pursuant to that certain Securities Purchase Agreement, dated as of
September 26, 2008, between Clinical Data and the purchasers named
therein (the “2008 Warrants”) for an upfront price of $13.56
multiplied by the number of shares of common stock subject to such
2008 Warrants as of immediately prior to the Acceptance Time and
the Contingent Consideration for each of such shares;
- warrants with an exercise price of
$8.120 issued by Clinical Data pursuant to that certain Securities
Purchase Agreement, dated as of February 25, 2009, between Clinical
Data and the purchasers named therein (the “Series A 2009
Warrants”) for an upfront price of $21.88 multiplied by the number
of shares of common stock subject to such Series A 2009 Warrants as
of immediately prior to the Acceptance Time and the Contingent
Consideration for each of such shares;
- warrants with an exercise price of
$9.744 issued by Clinical Data pursuant to that certain Securities
Purchase Agreement, dated as of February 25, 2009, between Clinical
Data and the purchasers named therein (the “Series B 2009
Warrants”) for an upfront price of $20.26 multiplied by the number
of shares of common stock subject to such Series B 2009 Warrants as
of immediately prior to the Acceptance Time and the Contingent
Consideration for each of such shares; and
- convertible notes dated February 25,
2009 issued by Clinical Data pursuant to that certain Securities
Purchase Agreement dated February 25, 2009 by and among Clinical
Data, New River Management V, LP and RJK, L.L.C. and in an
aggregate principal amount of $50,000,000 (the “Company Notes”) for
an upfront price of $30.00 multiplied by the maximum number of
Shares into which such Company Notes are convertible immediately
prior to the Acceptance Time and the Contingent Consideration for
each of such shares.
Today, Forest, FL Holding CV, and Magnolia will file with the
U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer
Statement on Schedule TO, containing the Offer to Purchase, forms
of Letters of Transmittal and related tender offer documents, which
set forth in detail the terms and conditions of the tender offer.
Clinical Data will file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 setting forth in detail, among other
things, the unanimous recommendation of Clinical Data’s Board of
Directors that Clinical Data’s shareholders accept the tender
offer, tender their shares pursuant to the tender offer and, if
required by applicable law, adopt the Agreement and Plan of Merger
and the transactions contemplated thereby. These documents will be
mailed to all Clinical Data shareholders, noteholders, and warrant
holders of record.
The tender offer is scheduled to expire at 12:00 midnight, New
York City time, on Monday, April 4, 2011, unless the tender offer
is extended. Following the completion of the tender offer and, if
required, receipt of approval by Clinical Data’s shareholders,
Forest expects to consummate a merger of Magnolia and Clinical Data
in which any shares of Clinical Data not tendered in the tender
offer (other than shares held by Forest, FL Holding CV, Magnolia,
or Clinical Data or shares held by Clinical Data stockholders who
have and validly exercise appraisal rights under Delaware law) will
be cancelled in exchange for the right to receive the same
consideration per share being paid in the tender offer, and
unexercised notes and warrants issued by Clinical Data that are
convertible into or exerciseable for shares of Clinical Data common
stock will be canceled, as permitted by the terms thereof, and
converted into the right to receive the same consideration per note
or warrant being paid in the tender offer. Under the terms of the
definitive merger agreement, the transaction is conditioned upon,
among other things, satisfaction of a minimum tender condition
requiring that the securities tendered in the tender offer
represent approximately 78.2% of the outstanding shares, warrants
and notes of Clinical Data common stock on a fully-diluted basis.
In addition the transaction is subject to the expiration or
termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976. In the event that the minimum
tender condition is not met, and in certain other circumstances,
the parties have agreed to complete the transaction through a
one-step merger after receipt of stockholder approval.
The Depositary for the tender offer is American Stock
Transfer & Trust Company, LLC, Operations Center, Attn:
Reorganization Department, P.O. Box 2042, New York, NY 10272-2042.
The Dealer Manager for the tender offer is Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, NY 10036. The Information
Agent for the tender offer is MacKenzie Partners, Inc., 105 Madison
Avenue, New York, NY 10016. The tender offer materials may be
obtained at no charge by directing a request by mail to MacKenzie
Partners, Inc. or by calling toll-free at (800) 322-2885 or collect
at (212) 929-5500, and may also be obtained at no charge at the
website maintained by the SEC at www.sec.gov. Additionally, any
questions related to the tender offer may be directed to MacKenzie
Partners, Inc. at the mailing address or telephone numbers provided
above.
About Forest Laboratories
Forest Laboratories’ (NYSE: FRX) longstanding global
partnerships and track record developing and marketing
pharmaceutical products in the United States have yielded its
well-established central nervous system and cardiovascular
franchises and innovations in anti-infective medicine. The
Company’s pipeline, the most robust in its history, includes
product candidates in all stages of development across a wide range
of therapeutic areas. The Company is headquartered in New York, NY.
To learn more, visit www.FRX.com.
Forward Looking Statements
Except for the historical information contained herein, this
release contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. These
statements involve a number of risks and uncertainties that could
cause actual results to differ from those set forth in the forward
looking statements, including that the transaction may not be
timely completed, if at all; that, prior to the completion of the
transactions, if at all, Clinical Data’s business may experience
significant disruptions due to transaction-related uncertainty or
other factors; the timing and the benefits of the business
combination transaction involving Forest and Clinical Data, the
ability to obtain regulatory approvals of the transaction on the
proposed terms and schedule; the requirement that Clinical Data
stockholders approve the transaction; the risk that the businesses
will not be integrated successfully; uncertainties regarding the
timing of launch of Viibryd and future sales of Viibryd; the risk
that the cost savings and any other synergies from the transaction
may not be fully realized or may take longer to realize than
expected; the difficulty of predicting FDA approvals, the
acceptance and demand for new pharmaceutical products, the impact
of competitive products and pricing, the timely development and
launch of new products, and the risk factors listed from time to
time in Forest Laboratories' Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, and any subsequent SEC filings and Clinical
Data’s Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
and any subsequent SEC filings.
Notice to Investors
This press release is neither an offer to purchase nor a
solicitation of an offer to sell any securities. The solicitation
and the offer to buy shares of Clinical Data common stock and
certain outstanding notes and warrants issued by Clinical Data are
being made pursuant to an offer to purchase and related materials
that Forest and Magnolia will file with the Securities and Exchange
Commission. Today, Forest and Magnolia will file a tender offer
statement on Schedule TO with the Securities and Exchange
Commission, and Clinical Data will file a
solicitation/recommendation statement on Schedule 14D-9 with
respect to the offer. The tender offer statement (including an
offer to purchase, a related letter of transmittal and other offer
documents) and the solicitation/recommendation statement will
contain important information that should be read carefully and
considered before any decision is made with respect to the tender
offer. Additionally, Clinical Data and Forest will file other
relevant materials in connection with the proposed transaction of
Clinical Data by Forest pursuant to the terms of the merger
agreement. These materials will be sent free of charge to all
stockholders of Clinical Data when available. In addition, all of
these materials (and all other materials filed by Clinical Data
with the Securities and Exchange Commission) will be available at
no charge from the Securities and Exchange Commission through its
website at www.sec.gov. Free copies of the offer to purchase, the
related letter of transmittal and certain other offering documents
will be made available by Forest and when available may be obtained
by directing a request to Forest at www.frx.com. Investors and security holders may
also obtain free copies of the documents filed with the Securities
and Exchange Commission by Clinical Data by contacting Clinical
Data Investor Relations at ir@clda.com.
INVESTORS AND SHAREHOLDERS OF CLINICAL DATA ARE ADVISED TO READ
THE SCHEDULE TO, THE SCHEDULE 14D-9, AND THE PROXY STATEMENT, AS
EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY
OTHER RELEVANT DOCUMENTS FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION
WITH RESPECT TO THE TENDER OFFER OR MERGER, BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND
THE PARTIES THERETO.
Additional Information about the Merger and Where to Find
It
In connection with the potential one-step merger, Clinical Data
will file a proxy statement with the Securities and Exchange
Commission. Additionally, Clinical Data would file other relevant
materials with the Securities and Exchange Commission in connection
with the proposed acquisition of Clinical Data by Forest pursuant
to the terms of an Agreement and Plan of Merger by and among
Clinical Data, Forest Laboratories, Inc., a Delaware corporation
and FL Holding CV and Magnolia, each of which are subsidiaries of
Forest. The materials to be filed by Clinical Data with the
Securities and Exchange Commission may be obtained free of charge
at the Securities and Exchange Commission’s web site at
www.sec.gov. Investors and
stockholders also may obtain free copies of the proxy statement
from Clinical Data by contacting Clinical Data Investor Relations
at ir@clda.com. Investors and security
holders of Clinical Data are urged to read the proxy statement and
the other relevant materials when they become available before
making any voting or investment decision with respect to the
proposed merger because they will contain important information
about the merger and the parties to the merger.
Clinical Data and its respective directors, executive officers
and other members of their management and employees, under the
Securities and Exchange Commission rules, may be deemed to be
participants in the solicitation of proxies of Clinical Data
stockholders in connection with the proposed merger. Further, such
persons may have direct or indirect interests in the proposed
transaction due to, among other things, securities holdings,
pre-existing or future indemnification arrangements, vesting of
equity awards, or rights to severance payments or bonuses in
connection with the proposed transaction. Information concerning
the interests of these persons will be set forth in the Schedule
14D-9 and proxy statement relating to the proposed transaction when
it becomes available. Information concerning the interests of
Clinical Data’s participants in the solicitation, which may, in
some cases, be different than those of Clinical Data’s stockholders
generally, will be set forth in the proxy statement relating to the
merger when it becomes available.
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