Sepracor is being sued over claims that its proposed $2.6 billion sale to Dainippon Sumitomo Pharma is based on terms that are detrimental to shareholders. The deal, announced Sept. 3, will pay Sepracor stockholders $23 a share in cash. The price is unfair and inadequate, lawyers for two shareholders said in complaints filed in Delaware Chancery Court. Sepracor directors “did not undertake to canvas the market prior to entering into the proposed merger and thus failed to inform themselves of the inherent fair value of the company,” lawyers for the Stationary Engineers Local 39 Pension Trust Fund said in its complaint, reported Bloomberg. The proposed transaction gives Dainippon access to a U.S. sales force and experimental treatments in the world’s biggest drug market. Japanese pharmaceutical companies have spent more than $12 billion since last year buying U.S. rivals, taking advantage of the yen’s 26 percent gain against the dollar in the past two years. Sepracor directors failed to conduct an appropriate sales process and implemented preclusive deal protections that will inhibit an alternate transaction, plaintiff Salvatore Toronto said in his complaint. The deal provides for a $77.4 million termination fee and contains restrictive provisions such as a “no solicitation” condition which gives Dainippon time to match any other offer, according to both complaints. The merger agreement also contains an option that guarantees Dainippon an “absolute majority ownership position” even if the company doesn’t acquire a majority of Sepracor’s stock from shareholders who refuse to tender their shares, the complaints said. Both complaints are asking a judge to bar the deal and award unspecified damages. Sepracor, based in Massachusetts, makes the sleeping aid Lunesta and the asthma drug Xopenex. Dainippon Sumitomo, based in Osaka, plans to submit its experimental schizophrenia treatment Lurasidone for U.S. regulatory approval in 2010 and start sales in 2011.
Sepracor Sued Over Proposed Dainippon Acquisition
The price is unfair and inadequate, lawyers for two shareholders said in complaints filed in Delaware Chancery Court.
September 9, 2009