eastunder
14 years ago
Cypress Bioscience Agrees To Be Acquired by Ramius LLC and Royalty Pharma for $6.50 Per Share in Cash Date : 12/15/2010 @ 8:00AM
GAME OVER. Adios, Dear Board. ;)
Cypress Bioscience, Inc. (Nasdaq: CYPB) (“Cypress”), a pharmaceutical company engaged in the development of innovative drugs to treat central nervous system (CNS) disorders, announced today that it has entered into a definitive merger agreement with Ramius V&O Acquisition LLC, an affiliate of Ramius LLC (collectively, “Ramius”) and affiliates of Royalty Pharma (“Royalty Pharma”), providing for the acquisition of Cypress by Ramius and Royalty Pharma. Under the terms of the agreement, which was unanimously approved by Cypress’ Board of Directors, Ramius will amend its existing tender offer to acquire all of the outstanding shares of Cypress common stock it does not already own at an increased price of $6.50 per share in cash. The transaction has a total equity value of approximately $255 million on a fully-diluted basis.
The $6.50 per share cash purchase price represents a premium of approximately 63% over Ramius’ original unsolicited proposal to acquire Cypress for $4.00 per share in cash, and a premium of approximately 160% to the Company‘s unaffected share price on July 16, 2010, the last trading day prior to the public disclosure of Ramius’ unsolicited proposal.
“For more than two months, Cypress’ Board of Directors undertook a comprehensive evaluation of the Company’s strategic alternatives,” said Daniel H. Petree, Lead Independent Director of Cypress’ Board of Directors. “After thorough and extensive analysis with our financial advisors, Cypress’ Board unanimously concluded that this transaction with Ramius and Royalty Pharma provides significant cash value to our stockholders and is in the best interests of our stockholders, customers and employees.”
Ramius Partner Managing Director Jeffrey C. Smith stated, “We are pleased that Cypress’ Board of Directors has accepted our all-cash offer of $6.50 per share. We firmly believe that this offer represents full and fair value for all Cypress stockholders and look forward to an expeditious closing of the merger.” Mr. Smith went on to state, “Royalty Pharma has proven to be an extremely valuable partner in our acquisition of Cypress. Their expertise in investing in and acquiring royalty interests has allowed us to structure a unique and efficient transaction that we believe clearly maximizes value for all stockholders.”
Pablo Legorreta, Chief Executive Officer of Royalty Pharma, commented, “As the leading investor in biopharmaceutical royalties, we have a long history of working in partnerships with biotech companies and their management teams. This transaction validates the successful record of Cypress’ team under the leadership of Dr. Jay Kranzler, which includes the development of two FDA approved products.” Mr. Legorreta further added, “We are excited to add the Savella® royalty to our diversified portfolio of leading biopharmaceutical royalties and look forward to working with Cypress management to enhance the value of the company’s pipeline assets.”
Cypress’ Board of Directors unanimously determined that the definitive merger agreement with Ramius and Royalty Pharma and the terms of the Ramius/Royalty Pharma tender offer are fair to and in the best interests of Cypress and its stockholders, and recommends that Cypress stockholders tender their Cypress shares to Ramius/Royalty Pharma and adopt the merger agreement. Cypress will amend its Schedule 14D-9 previously filed with the Securities and Exchange Commission to reflect the recommendation of its Board of Directors.
The transaction is subject to certain closing conditions, including the valid tender of sufficient shares, which, when added to shares owned by Ramius and its affiliates and Royalty Pharma, constitute more than 50% of the total number of common shares outstanding on a fully-diluted basis. It is also subject to regulatory approvals and other customary closing conditions. There is no financing condition to consummate the transaction.
Ramius and Royalty Pharma’s tender offer for all of the outstanding shares of common stock of Cypress, which was scheduled to expire at Midnight, New York City time, December 17, 2010, will be extended and remain open through Midnight, New York City time, on December 29, 2010, unless further extended in accordance with the terms of the merger agreement. As of the close of business on December 14, 2010, approximately 3,109,292 shares of common stock of Cypress, representing approximately 8.1% of all outstanding shares, were validly tendered and not withdrawn pursuant to the tender offer. This amount does not include the 3,815,000 shares owned by Ramius and its affiliates.
Following the completion of the tender offer and, if required, receipt of approval by Cypress’ stockholders, Ramius expects to consummate a merger of Ramius V&O Acquisition LLC and Cypress in which any shares of Cypress not tendered into the tender offer will be cancelled in exchange for the right to receive $6.50 per share in cash. The transaction is currently expected to close in January 2011, but could close as early as December 30, 2010. The terms and conditions of Ramius and Royalty Pharma’s amended tender offer will be described in amended offer documents, which will be filed with the Securities and Exchange Commission.
Jefferies & Company, Inc. is serving as financial advisors to Cypress and Cooley LLP, Sullivan & Cromwell LLP and Potter Anderson & Corroon LLP are serving as Cypress’ legal advisors. Perella Weinberg Partners is serving as financial advisors to the Board of Directors of Cypress. Olshan Grundman Frome Rosenzweig & Wolosky LLP is serving as legal advisor to Ramius. Groton Partners is serving as financial advisor to Royalty Pharma. Goodwin Procter LLP and Akin Gump, Strauss, Hauer & Feld, LLP are serving as legal advisors to Royalty Pharma.
eastunder
14 years ago
Ramius Sends Letter to Independent Members of the Cypress Board
Questions Legitimacy and Authenticity of Company's Announced Decision to Evaluate Strategic Alternatives to Maximize Shareholder Value
Calls on Board to Immediately Answer Questions Regarding Company's True Intentions
http://finance.yahoo.com/news/Ramius-Sends-Letter-to-prnews-3649157794.html?x=0&.v=1
September 30, 2010, 1:37 pm EDT
NEW YORK, Sept. 30 /PRNewswire/ -- Ramius Value and Opportunity Advisors LLC, a subsidiary of Ramius LLC (collectively, "Ramius"), today announced that it delivered a letter to the independent directors of Cypress Bioscience, Inc. ("Cypress" or "the Company") (Nasdaq:CYPB - News) in response to the Company's Schedule 14D-9 rejecting Ramius' $4.25 tender offer and its announcement that the Company will engage in a broad evaluation of Cypress' strategic alternatives to maximize shareholder value. Ramius currently owns 9.9% of Cypress and has commenced a tender offer on September 15, 2010 to purchase all of the shares of Cypress it does not currently own for $4.25 per share. In the letter, Ramius expressed concerns about the legitimacy and authenticity of this strategic review process in light of certain inconsistent statements made by management and the Board surrounding the Company's announcement. Ramius further stated that a "broad evaluation of strategic alternatives" is extremely vague and raises serious questions as to whether the Board will fully consider, without bias, a sale of the Company during the process.
Ramius Partner Managing Director Jeffrey C. Smith stated, “If management and the Board are interested in rebuilding credibility with shareholders, the first step is to answer our questions promptly and honestly.”
Mr. Smith continued, "We would also expect that the Board will immediately form a truly independent special committee to run a real auction process with a publicly stated goal of achieving maximum value through a sale of the Company."
For further information regarding Ramius' tender offer, shareholders can visit www.tenderforcypressbio.com. Otherwise, to contact Ramius directly, shareholders can email contact information to cypbtender@ramius.com.
The full text of the letter follows:
==================================================================
To the Independent Board Members of Cypress Bioscience, Inc.:
Ramius Value and Opportunity Advisors LLC, a subsidiary of Ramius LLC (collectively, "Ramius"), has reviewed the Schedule 14D-9 recommendation filed by Cypress Bioscience Inc. ("Cypress" or the "Company") on September 28, 2010. We are disappointed that the Company has rejected our $4.25 per share all-cash offer, which represents a 70% premium to the Company's unaffected stock price, without engaging or negotiating with us. Despite this, we are cautiously optimistic about the Company's announcement that the Board has decided to run a process to explore strategic alternatives in order to maximize value for all Cypress shareholders. However, we are puzzled by the apparent inconsistencies surrounding the Company's announcement to undertake this process and have serious concerns about the legitimacy and authenticity of this strategic review process. Therefore, we ask that the Company provide prompt answers to the following questions and concerns so that we may better understand the Company's true intentions:
Why should shareholders believe that this process is real?
Management and the Board of Cypress have a credibility problem. Even in the latest communication with shareholders announcing this process, lead independent director Daniel H. Petree states that the Cypress Board "continues to believe that the Company's current strategy of developing a portfolio of CNS drug candidates will deliver significant value to Cypress stockholders." This raises serious concerns that the Company is pre-disposed to continuing down the destructive path of its CNS pipeline strategy. It has been made abundantly clear, based on stock performance and public communications from certain significant shareholders, that this pipeline strategy is not supported by your shareholders. Based on the inclusion of such statements in the Company's latest communication, why should shareholders have any comfort that the strategic review process is real and that the Company will truly and fully consider a sale of the Company to the highest bidder?
If the Company is truly open to fairly evaluating all strategic alternatives, then why is Chairman and CEO Jay Kranzler making comments to the media that contradict the statements in the SC 14D-9 recommendation?
In an article published in the San Diego Union Tribune on September 28, 2010, the day after the Board's announcement that it would engage in an evaluation of strategic alternatives to maximize shareholder value, Dr. Kranzler was quoted as saying that "the best way to build shareholder value was to go back to our core strength [of developing CNS drugs]". This statement was made on the same day that the Company released its recommendation statement on Schedule 14D-9 and a press release announcing its intention to undertake a process to maximize value. Does this sound like a Chairman and CEO who is truly open to evaluating all strategic alternatives on a level playing field? Please explain why we should have any faith that this Board will fairly assess all strategic alternatives when Dr. Kranzler is making public statements that seem to indicate the Board has already pre-determined the conclusion of the strategic alternatives review?
If this process is real, why have we not been contacted?
Two days have elapsed since the Company announced its intention to engage in an evaluation of strategic alternatives to maximize value for all Cypress shareholders. Not only have we commenced a tender offer to acquire all of the shares we do not currently own at a 70% premium to the unaffected stock price, but we have repeatedly expressed our willingness to allow for a "go shop" period in a definitive agreement or to participate in a true auction process. We have even publicly stated our willingness to consider raising the value of our offer if given the chance to conduct due diligence. If management and the Board are truly committed to exploring a process to maximize value for shareholders, why have we not been contacted to begin negotiations?
Since the CNS pipeline strategy has only destroyed value to date, why isn't the Board committing now to running a full auction process with the intended outcome being a sale of the Company to the highest bidder, instead of a vague strategic review process?
A "broad evaluation of strategic alternatives" is extremely vague and raises serious questions as to whether the Board will fully consider, without bias, a sale of the Company during its strategic review process. One research analyst already stated in response to the Company's recommendation statement on Schedule 14D-9 that "we don't believe that an outright sale of the company is management's top choice…" even though "a sale…[is] the best outcome for shareholders." (Gabelli & Company, Inc, September 29, 2010). Another analyst cited the Company's announcement as a "lack of a formal auction" (Roth Capital Partners, September 29, 2010). If the Board truly intends to pursue a sale of the Company, why will the Board not commit to running a full auction process?
Will the Company commit to maintaining the business and financial "status quo" and refrain from doing any additional in-licensing transactions or acquisitions while the process is pending?
Since our original acquisition proposal was announced on July 19, 2010, we have repeatedly asked the Board to refrain from entering into any further material transactions, licensing agreements or business combinations. Instead, the Board has approved transaction after transaction, each of which has led to an immediate decline in the value of Cypress' shares in the day following its announcement. Now, ironically, the Company has put in place a poison pill to, according to the lead independent director, Mr. Petree, "maintain the status quo." The "status quo" should also include maintaining the current business and financial profile of the Company by immediately halting any action to enter into or consummate any further material transactions, licensing agreements or business combinations. Will the Company commit to maintaining the "status quo" from a business and financial perspective during the pendency of the review process?
What is the estimated timetable for this process?
At this juncture, the Company has put forth extremely vague commitments to "engage in a broad evaluation of strategic alternatives." Given the circumstances surrounding such a process and our ongoing tender offer, shareholders deserve to know what the Board's expectation is for the timing of such a process, which we believe can and should be completed on an expedited basis. How can shareholders be comfortable that management and the Board are working with a sense of real urgency to complete the process successfully?
We firmly believe that shareholders, including ourselves as the second largest owners of Cypress, deserve immediate answers to these questions. As part of your purported newfound commitment to maximizing value for shareholders, we expect that the Board will immediately form a truly independent special committee to run a real auction process with a publicly stated goal of achieving maximum value through a sale of the Company. To be clear, we believe shareholders are not interested in accepting anything short of a sale of the entire Company to the highest bidder. A sale of one or more of the Company's assets, which would allow the Board and management team to retain the cash and pursue its previously stated strategy of purchasing speculative early-stage CNS drugs, is completely unacceptable. As always, we stand ready, willing, and able to start negotiations with the Company and its advisors to ensure that we are in a position to put forth our best possible offer.
Best Regards,
Jeffrey C. Smith
Partner Managing Director
Ramius LLC
eastunder
14 years ago
From that letter: oh oh! Poison Pill time. Ramius is gonna be pissed!
Stockholders Rights Agreement
Cypress also announced today that its Board of Directors has adopted a Rights Agreement to maintain the status quo while Cypress explores strategic alternatives to maximize stockholder value. The Ramius offer is subject to a condition that sufficient shares be tendered that would, together with the shares Ramius and its affiliates already own, constitute 90% of the then outstanding shares of common stock on a fully diluted basis. Under the Rights Agreement the purchase of that number of shares pursuant to the Ramius offer at a price of not less than $4.25 per share will not trigger the Rights Agreement, if prior to such acquisition, Ramius has irrevocably committed to a prompt merger of the Company where the remaining common shares receive the same value.
However, the Board of Directors urges stockholders, for the reasons expressed above and more fully in the Company's Solicitation/Recommendation Statement on Schedule 14D-9, not to tender shares into the Ramius offer. In addition, the Rights Agreement is intended to deter Ramius or any other stockholder from buying large amounts of shares outside of the context of the Ramius offer, which could adversely affect the ability of a third party to propose a superior alternative to the Ramius offer. The Rights Agreement is also intended to deter Ramius from amending its offer to provide terms which are worse to Cypress' stockholders than the current terms of the Ramius offer.
Under the Stockholders Rights Agreement, the rights will become separate from the common stock and become exercisable if a person becomes an "Acquiring Person" by acquiring 15% or more of the common stock of Cypress, if a person commences on or after September 27, 2010, a tender offer that could result in that person owning 15% or more of the common stock of Cypress, or if Ramius were to amend the Ramius offer in certain respects. Under the Rights Agreement, until there is an Acquiring Person, each Right entitles the registered holder to purchase from Cypress one one-hundredth of a share of Series A Junior Participating Preferred Stock, par value $0.001 per share (the "Preferred Shares"), at a price of $15 per one one-hundredth of a Preferred Share, subject to adjustment. Each one one-hundredth of a Preferred Share has designations and powers, preferences and rights, and qualifications, limitations and restrictions, designed to make it the economic equivalent of a share of Common Stock. The Rights become exercisable on more advantageous terms, and the Rights of the Acquiring Person and related parties are voided, only in the event that 15% or more of the common stock is acquired, creating an Acquiring Person. However, as described above, if Ramius acquires sufficient shares based on the current terms and conditions of the Ramius offer so that, together with the shares it and related parties already own, it owns 90% of the then outstanding shares of Cypress on a fully diluted basis, Ramius, provided it commits irrevocably to a prompt second-step merger on the same terms as the Ramius offer, would not become an Acquiring Person. The Rights Agreement will expire in one year. The description and terms of the rights are set forth in the Rights Agreement, which have been filed with the SEC.
Mr. Petree commented, "We have adopted this short-term Rights Agreement in order to maintain the status quo while we are pursuing strategic alternatives. We believe the Rights Agreement should help ensure that the Board of Directors has adequate time to consider all strategic alternatives for maximizing value for Cypress stockholders and prevent third parties from attempting to disrupt this process. However, if Cypress stockholders tender the requisite number of shares, the Rights Agreement will not prevent the consummation of the Ramius offer."
Jefferies & Company, Inc. and Perella Weinberg Partners are serving as financial advisors to Cypress. Cooley LLP, Sullivan & Cromwell LLP, and Potter Anderson & Corroon LLP are serving as Cypress' legal advisors.
ScovilleUnits
14 years ago
Board Unanimously Rejects Ramius' Unsolicited Tender Offer
http://www.knobias.com/story.htm?eid=3.1.ee1fecc12d53970ca14c20bfbc2bd32976debbbc396f99192a9b51b381d79194
Cypress Bioscience Board of Directors Unanimously Rejects Ramius' Unsolicited Tender Offer
Tuesday , September 28, 2010 08:21ET
SAN DIEGO, CA -- (Marketwire) -- 09/28/10 -- Cypress Bioscience, Inc. (NASDAQ: CYPB) ("Cypress" or the "Company"), a pharmaceutical company engaged in the development of innovative drugs to treat central nervous system (CNS) disorders, today announced that its Board of Directors has unanimously rejected the unsolicited tender offer by Ramius V&O Acquisition LLC to purchase all of the outstanding shares of Cypress for $4.25 per share in cash ("the Ramius offer").
The Cypress Board reached its recommendation after careful consideration, including a thorough review of the Ramius offer with its independent financial and legal advisors, and has unanimously determined that the Ramius offer grossly undervalues Cypress' current business and future prospects, is highly conditional rendering it illusory and is not in the best interests of Cypress and its stockholders (other than Ramius and its affiliates). Accordingly, the Cypress Board recommends that Cypress stockholders not tender any of their shares into the Ramius offer and withdraw any previously tendered shares.
The Cypress Board also announced today that it has determined to engage in a broad evaluation of Cypress' strategic alternatives, with the assistance of its financial advisors, in order to maximize value for all Cypress stockholders. The Board's commitment to explore strategic alternatives may include monetization of certain Cypress assets or other transactions that deliver value to Cypress' stockholders and/or pursuit of Cypress' current CNS strategy, or a sale or strategic combination of Cypress with third parties. Cypress will continue to operate its business in the ordinary course, taking into account the exploration of alternatives process. Among other ongoing activities, Cypress will continue to take actions to implement the Board's direction to sell its diagnostics business or exit from it by the end of the third calendar quarter of 2010. The Company noted that there can be no assurance that the evaluation of strategic alternatives will result in any transaction and the Company does not intend to disclose developments regarding the evaluation of strategic alternatives unless and until a final decision is made.
"The Cypress Board unanimously determined that the Ramius offer grossly undervalues Cypress' current business and future prospects, is highly conditional rendering it illusory and is not in the best interests of Cypress stockholders, other than Ramius and its affiliates," said Daniel H. Petree, Lead Independent Director of the Board of Directors. "Our Board continues to believe that the Company's current strategy of developing a portfolio of CNS drug candidates will deliver significant value to Cypress stockholders. The Cypress Board takes its fiduciary duties very seriously and values the opinions of its stockholders. In that regard, the Board has determined to engage in a broad evaluation of strategic alternatives to maximize value for all Cypress stockholders."
Reasons for the Board's Recommendation
In making its determination to reject Ramius' unsolicited offer, the Cypress Board considered a number of factors, including:
- The Ramius offer grossly undervalues Cypress'current business and future prospects. The Board believes that the Ramius offer is designed to provide Ramius with an extremely attractive return on its recent investment in the Company at the expense of all other Cypress stockholders. The Ramius offer does not adequately account for the significant value of the ongoing cash flow from the Savella royalty stream, which alone, significantly exceeds the value of Cypress implied by the Ramius offer. In addition, the Ramius offer undervalues Cypress' existing business and prospects in the CNS market, a market that generated $121 billion in worldwide sales in 2009. Cypress' management team possesses unique know-how that has led to the successful development and marketing of CNS products and Cypress holds a valuable portfolio of intellectual property rights and pre-clinical and clinical data relating to the CYP-1020, Carbetocin and Staccato Nicotine programs. The Board believes each of these programs has a positive expected value based on the cash investment required and future potential profits, and also notes that the Ramius offer is even below Cypress' liquidation value.
- The Ramius offer is funded almost entirely by Cypress' own cash and other assets, including the monetization of the Savella royalty, resulting in Ramius providing only approximately $17.8 million, or $0.51 per share, in purchase price that is not funded by Cypress. The $125 million contingent financing of the Ramius offer requires immediate repayment of $80 million in cash and delivery of 50 percent interest in the Savella royalty in exchange for the remaining $45 million at the closing of the Ramius offer. As of August 31, 2010, Cypress had cash and cash equivalents of approximately $99.7 million and Cypress currently expects to end the year with approximately $85 million. Furthermore, Cypress has no outstanding indebtedness. As a result, Ramius is funding nearly the entire offer with Cypress cash and partial monetization of the Savella royalty.
- The consummation of the Ramius offer would transfer significant value from other stockholders of Cypress to Ramius. Ramius is funding nearly all of the offer with assets of Cypress and will retain for itself at least 50 percent of the Savella royalty stream and other CNS assets, enabling Ramius to generate an enormous potential monetary return in a short-term period, at the expense of Cypress' other stockholders.
- The Board has determined to engage in a broad evaluation of its strategic alternatives, with the assistance of its financial advisors, in order to maximize value for all stockholders. The Board has committed to explore strategic alternatives for Cypress, which may include monetization of certain Cypress assets or other transactions that deliver value to Cypress' stockholders and/or pursuit of Cypress' current CNS strategy, or a sale or strategic combination of Cypress with third parties. The consummation of the Ramius offer would deprive other stockholders the opportunity to realize value from the Board's pursuit of strategic alternatives.
- The Ramius offer is not a firm commitment, is highly conditional and is unlikely to close by the expiration date, if at all -- calling into question Ramius' commitment to acquire Cypress. The Ramius offer has numerous conditions that make it highly unlikely to close on October 13, 2010 (the expiration date as stated in its offer), or thereafter, assuming the Ramius offer is extended. These conditions include, among others: the No Impairment Condition, the Financing Condition, the Minimum Cash Balance Condition, and the 90 Percent Tender Condition, which are discussed in detail in the Company's 14D-9. The Board believes that the Ramius offer is essentially a one-way option in favor of Ramius to acquire Cypress, not a bona fide offer subject only to reasonable and customary conditions.
- The Ramius offer is opportunistic and timed to take advantage of Cypress' currently depressed stock price. The Board believes that the Ramius offer represents an opportunistic attempt by Ramius to purchase shares of the Company's common stock that has been impacted by market dislocation resulting from Cypress' change in strategy, and is currently at a depressed level. The Ramius offer price represents a discount of 42.9 percent from Cypress' 52-week high. Ramius and its affiliates were not stockholders of Cypress until May 27, 2010, and sold virtually all of their shares immediately following the announcement of the BioLine transaction and thereafter acquired all of their current shareholdings at a weighted average cost of approximately $2.55 per share. Thus, the Ramius offer is intended to enable Ramius to profit enormously in a very short time period at the expense of Cypress' other stockholders who are being offered a discount to Cypress' liquidation value.
- Ramius' tactics have been designed to divert attention away from its grossly undervalued offer. Ramius has engaged in a carefully orchestrated public campaign designed to divert attention away from the fact that the Ramius offer grossly undervalues Cypress and inappropriately transfers significant value to Ramius and its affiliates from other stockholders. The Ramius offer is essentially a proposal to liquidate Cypress for the benefit of Ramius with the result that existing stockholders receive a significant discount to even the liquidation value of Cypress. Moreover, Ramius receives an enormous, disproportionate and unjustified return on its investment utilizing Cypress' cash and assets to effect a transaction, all at the expense of the other Cypress stockholders.
Cypress is filing with the Securities and Exchange Commission (SEC), and will mail to stockholders, a Solicitation/Recommendation Statement on Schedule 14D-9 setting forth the Company's formal recommendation with respect to the Ramius offer. Additional information with respect to the Board's decision to recommend that stockholders reject the Ramius offer and the matters considered by the Board in reaching such decision is contained in the Schedule 14D-9.
Stockholders Rights Agreement
Cypress also announced today that its Board of Directors has adopted a Rights Agreement to maintain the status quo while Cypress explores strategic alternatives to maximize stockholder value. The Ramius offer is subject to a condition that sufficient shares be tendered that would, together with the shares Ramius and its affiliates already own, constitute 90% of the then outstanding shares of common stock on a fully diluted basis. Under the Rights Agreement the purchase of that number of shares pursuant to the Ramius offer at a price of not less than $4.25 per share will not trigger the Rights Agreement, if prior to such acquisition, Ramius has irrevocably committed to a prompt merger of the Company where the remaining common shares receive the same value.
However, the Board of Directors urges stockholders, for the reasons expressed above and more fully in the Company's Solicitation/Recommendation Statement on Schedule 14D-9, not to tender shares into the Ramius offer. In addition, the Rights Agreement is intended to deter Ramius or any other stockholder from buying large amounts of shares outside of the context of the Ramius offer, which could adversely affect the ability of a third party to propose a superior alternative to the Ramius offer. The Rights Agreement is also intended to deter Ramius from amending its offer to provide terms which are worse to Cypress' stockholders than the current terms of the Ramius offer.
Under the Stockholders Rights Agreement, the rights will become separate from the common stock and become exercisable if a person becomes an "Acquiring Person" by acquiring 15% or more of the common stock of Cypress, if a person commences on or after September 27, 2010, a tender offer that could result in that person owning 15% or more of the common stock of Cypress, or if Ramius were to amend the Ramius offer in certain respects. Under the Rights Agreement, until there is an Acquiring Person, each Right entitles the registered holder to purchase from Cypress one one-hundredth of a share of Series A Junior Participating Preferred Stock, par value $0.001 per share (the "Preferred Shares"), at a price of $15 per one one-hundredth of a Preferred Share, subject to adjustment. Each one one-hundredth of a Preferred Share has designations and powers, preferences and rights, and qualifications, limitations and restrictions, designed to make it the economic equivalent of a share of Common Stock. The Rights become exercisable on more advantageous terms, and the Rights of the Acquiring Person and related parties are voided, only in the event that 15% or more of the common stock is acquired, creating an Acquiring Person. However, as described above, if Ramius acquires sufficient shares based on the current terms and conditions of the Ramius offer so that, together with the shares it and related parties already own, it owns 90% of the then outstanding shares of Cypress on a fully diluted basis, Ramius, provided it commits irrevocably to a prompt second-step merger on the same terms as the Ramius offer, would not become an Acquiring Person. The Rights Agreement will expire in one year. The description and terms of the rights are set forth in the Rights Agreement, which have been filed with the SEC.
Mr. Petree commented, "We have adopted this short-term Rights Agreement in order to maintain the status quo while we are pursuing strategic alternatives. We believe the Rights Agreement should help ensure that the Board of Directors has adequate time to consider all strategic alternatives for maximizing value for Cypress stockholders and prevent third parties from attempting to disrupt this process. However, if Cypress stockholders tender the requisite number of shares, the Rights Agreement will not prevent the consummation of the Ramius offer."
Jefferies & Company, Inc. and Perella Weinberg Partners are serving as financial advisors to Cypress. Cooley LLP, Sullivan & Cromwell LLP, and Potter Anderson & Corroon LLP are serving as Cypress' legal advisors.
eastunder
14 years ago
Ramius Sends Letter to Independent Board Members of Cypress
Urges Board to Take No Action to Attempt to Block Tender Offer from Succeeding
http://finance.yahoo.com/news/Ramius-Sends-Letter-to-prnews-2787462336.html?x=0&.v=1
Press Release Source: Ramius LLC On Friday September 17, 2010, 6:08 pm EDT
NEW YORK, Sept. 17 /PRNewswire/ -- Ramius Value and Opportunity Advisors LLC, a subsidiary of Ramius LLC (collectively, "Ramius"), today announced that it has sent a letter to the independent board members of Cypress Bioscience, Inc. ("Cypress" or "the Company") (Nasdaq:CYPB - News).
In the letter, Ramius implores the independent members of the Cypress board to, once and for all, allow shareholders, the true owners of Cypress, to decide on the future of the Company. Ramius owns 9.9% of shares outstanding and has launched a tender offer to purchase all of the shares it does not currently own for $4.25 per share in cash.
Ramius Partner Managing Director Jeffrey C. Smith stated, "It is incumbent upon you, the independent members of the Cypress board, to allow shareholders to decide for themselves whether they choose to accept our offer of $4.25 per share in cash by tendering their shares to us or whether they choose to support management's strategy of depleting the Company's cash resources in pursuit of highly-speculative CNS drug development. The choice should be theirs, not yours."
Smith further stated, "It should be clear that we are committed to pursuing an acquisition of Cypress and have offered shareholders a substantial premium for their shares. It is now time for the board to step aside and allow shareholders to determine the future of Cypress."
The full text of the letter follows:
To the Independent Board Members of Cypress Bioscience, Inc.:
Ramius Value and Opportunity Advisors LLC, a subsidiary of Ramius LLC (collectively, "Ramius"), has commenced a tender offer, through a wholly owned subsidiary, to acquire all of the outstanding shares of common stock of Cypress Bioscience, Inc. ("Cypress" or "the Company") it does not already own for $4.25 per share in cash. Our offer represents a 70% premium to the price on the day prior to our initial acquisition proposal. You have left us with no choice but to take our offer directly to Cypress' shareholders due to your repeated failure to constructively negotiate with us, as well as your willingness to allow management to continue to engage in value-destroying transactions.
Since July 19, 2010, when we first proposed to acquire Cypress, we have asked that you, the independent members of the Cypress Board, refrain from entering into any further material transactions, licensing agreements or business combinations during the pendency of our offer. Instead, you have continued to approve transaction after transaction, each of which has led to an immediate decline in the value of Cypress' shares in the day following its announcement. Let us remind you of the massive destruction of shareholder value that has occurred over an extended period of time on your watch. In the one-, three-, and five-year periods prior to our initial acquisition proposal, the value of Cypress shares has been decimated.
Stock Performance 1 Year 3 Year 5 Year
Cypress Bioscience (73.6%) (81.1%) (81.8%)
Russell 2000 Index 16.9% (28.1%) (8.0%)
NASDAQ Biotechnology Index 8.1% (2.3%) 6.0%
*Stock price data as of July 16, 2010, the day prior to our initial acquisition proposal.
Our concern regarding the Board's willingness to blindly follow management's lead in approving these ill-conceived transactions is further exacerbated by the sudden resignation of one of your own, Jean-Pierre Million, who abruptly resigned from the Board citing a "difference of opinion with respect to the timing of the execution of the strategy." Further, in just the past two weeks, two other independent shareholders, Arcadia Capital Advisors and RA Capital Healthcare Fund, have issued public letters expressing their strong discontent with management and the Board's business strategy and their support of a sale of Cypress.
We implore you, the independent members of the Cypress Board, to once and for all allow shareholders, the true owners of Cypress, to decide the future of the Company. We have commenced a tender offer to acquire all of the outstanding shares of Cypress we do not currently own. This offer is being made directly to the shareholders. We caution the Board not to stand in the way of our offer by putting up any roadblocks or impediments to satisfying any of the conditions of our tender offer including, but not limited to:
1) Implementing a poison pill or other shareholder rights plan;
2) Entering into any further transactions, licensing agreements or business combinations; or
3) Taking any action that would result in the Company failing to meet the minimum cash balance required under the conditions of our tender offer.
It is incumbent upon you, the independent members of the Cypress Board, to allow shareholders to decide for themselves whether they choose to accept our offer of $4.25 per share in cash by tendering their shares in the offer or whether they choose to support management's strategy of depleting the Company's cash resources in pursuit of highly-speculative CNS drug development. This choice should be theirs, not yours. We urge you not to take any action to attempt to block our tender offer from succeeding. It should be clear that we are committed to pursuing an acquisition of Cypress and have offered shareholders a substantial premium for their shares. It is now time for the Board to step aside and allow shareholders to determine the future of Cypress.
Best Regards,
Jeffrey C. Smith
Partner Managing Director
Ramius LLC
eastunder
14 years ago
Scov - SCHEDULE 13D
http://xml.10kwizard.com/filing_raw.php?repo=tenk&ipage=7153649
Towards the bottom: exhibit 99.1
CONFIDENTIAL (PAH LEEZE! Who uses the word confidential when you are filing with the SEC? What's that about?)
September 14, 2010
Ramius Value and Opportunity Advisors LLC
599 Lexington Avenue, 20th Floor
New York, New York 10022
Attention: Mr. Jeffrey Smith
Ladies and Gentlemen:
Ramius Value and Opportunity Advisors LLC (including its affiliates, “you” or “Ramius”) has advised RP Management, LLC, Administrator of Royalty Pharma Finance Trust (“Royalty Pharma”, “we” or “us”) that an affiliate of yours (“NewCo”) proposes to commence an all cash tender offer (the “Tender Offer”) for all of the capital stock of Cypress Bioscience, Inc. (“Cypress”).
You have requested that Royalty Pharma commit to purchase from NewCo senior notes (the “Loan Notes”) of NewCo to finance the Tender Offer. As the premier fund dedicated exclusively to purchasing pharmaceutical royalties, we are prepared to commit significant capital to facilitate transactions that result in our acquiring royalty-producing assets. Should you succeed in acquiring Cypress, we are prepared to purchase the Loan Notes on the terms set forth below in order to acquire a half interest in Cypress’ Savella royalty.
(How would Forest feel about that? I thought they were behind Savella??)
As you know, we would also be interested acquiring the rest of the royalty if it is sold following the acquisition. Royalty Pharma has in excess of $1 billion in cash on hand for these purposes.
(So, share holders get their 4.25 cash - but then who gets the profit off of selling Savella? Ramius...and Then Royalty Pharma gets the future income off of Savella. Savella must work and well. That's good to know. I'm happy for that. Once again - how does Forest labs feel about that?)
In furtherance of the foregoing, Royalty Pharma is pleased to confirm its commitment to you (the “Commitment”) to purchase up to $125 million in Loan Notes pursuant to documentation in form and substance reasonably satisfactory to us, which shall include the terms and conditions set forth in the attached Term Sheet and such other representations, warranties, conditions, covenants, events of default and other provisions as are customary for transactions of this kind and reasonably satisfactory to us. The purchase of the Loan Notes by Royalty Pharma is referred to herein as the “Loan”. The obligation of Royalty Pharma to purchase the Loan Notes is expressly subject to the terms and conditions set forth herein and in the attached Term Sheet and will exist only upon the execution and delivery of the definitive documentation referred to above, and the satisfaction of the terms and conditions contained therein.
The Commitment may be terminated by Royalty Pharma (a) at any time on or after October 31, 2010; provided that if the Tender Offer shall be pending on such date, the Commitment may not be terminated by Royalty Pharma until the Tender Offer is terminated by NewCo or expires and (b) at any time if you shall have materially breached any of the agreements contained in this Commitment Letter or the attached Term Sheet in any respect. The termination of the Commitment hereunder will not terminate, limit or otherwise affect the indemnification, exculpatory, expense reimbursement, confidentiality, exclusivity and standstill provisions set forth herein. The Commitment is conditioned on (i) execution of mutually satisfactory definitive documentation for the Loan consistent with this Commitment Letter and the Term Sheet, (ii) the absence of any material adverse change or event with respect to Cypress, its assets, its financial condition or the Royalty (as defined in the Term Sheet), and (iii) Ramius and NewCo not amending any material provision or waiving any material term of the Tender Offer without Royalty Pharma’s prior written consent.
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CONFIDENTIAL
You hereby agree to indemnify and hold harmless each of Royalty Pharma and its affiliates (including, without limitation, controlling persons) and the directors, officers, employees, advisors and agents of Royalty Pharma (each, an “Indemnified Person”) from and against any and all third party losses, claims, costs, reasonable and documented out-of-pocket expenses, damages (other than indirect, special or consequential damages) or liabilities (or actions or other proceedings commenced or threatened in respect thereof) to the extent they arise out of, result from or in any way relate to this Commitment Letter, the Tender Offer, the Loan or any of the transactions contemplated hereby, and to reimburse each Indemnified Person upon its demand for any reasonable and documented out-of-pocket legal or other expenses incurred in connection with investigating, preparing to defend or defending against, or participating in, any such loss, claim, cost, expense, damage, liability or action or other proceeding (whether or not such Indemnified Person is a party to any action or proceeding), other than any of the foregoing of any Indemnified Person to the extent determined by a final judgment of a court of competent jurisdiction to have resulted by reason of the bad faith, gross negligence or willful misconduct of such Indemnified Person. You also agree that no Indemnified Person (i) shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you for any loss, claim, damages or liability related to, arising out of or in connection with, this Commitment Letter, the Commitment or the matters contemplated hereby, except to the extent that any loss, claim, damage or liability is found in a final judgment by a court of competent jurisdiction to have resulted from such party’s bad faith, gross negligence or willful misconduct; and (ii) shall have any liability to you for any indirect, special or consequential damages related to, arising out of, or in connection with, this Commitment Letter, the Commitment hereunder or the matters contemplated hereby, even if advised of the possibility thereof.
Promptly following the closing of the Tender Offer and the purchase of the Loan Notes by Royalty Pharma, NewCo agrees to pay all reasonable, actual, documented, out-of-pocket fees and expenses of Royalty Pharma (including, without limitation, legal fees and expenses and expenses incurred in connection with Royalty Pharma's due diligence investigation) associated with the transactions contemplated hereunder.
You agree that, for the period of time commencing on the date of this Commitment Letter and continuing through the earlier of (x) 180 days following the date of this Commitment Letter, (y) the closing of both the Tender Offer and the Exchange and (z) the expiration or termination of the Tender Offer without a closing thereunder due to a termination of the Commitment Letter by Newco or Ramius because Royalty Pharma is not ready, willing and able to fund its obligations hereunder or a termination by Royalty Pharma for any reason other than a breach by Newco or Ramius of its obligations hereunder (the “Ramius Exclusivity Period”), none of Ramius, NewCo or any of their affiliates (including any officer or director of Ramius, NewCo or any of their affiliates) shall, and Ramius and NewCo shall use their commercially reasonable efforts to cause their agents and representatives (including any financial advisor, attorney or accountant retained by Ramius, NewCo or any of their affiliates) not to, directly or indirectly, solicit, initiate, encourage or facilitate (including by way of furnishing information or data) any inquiries from a third party or the making of any proposal or offer by a third party with respect to (a) a loan to Ramius, NewCo or any of their affiliates for the purposes of facilitating the Tender Offer or (b) the purchase of any interest in, or the making of any loan or other investment secured by or the returns on which are derived by reference to or are dependent on payments on, the Royalty (collectively, “Solicit”). For purposes of this paragraph, Ramius agrees, and Royalty Pharma acknowledges, that Cowen Healthcare Royalty Management, LLC and the entities it manages shall be deemed a third party and not an affiliate of Ramius and NewCo (i.e., Ramius and NewCo agree that they will not, directly or indirectly, Solicit, Cowen Healthcare Royalty Management, LLC and any of the entities it manages). Notwithstanding the foregoing, Royalty Pharma acknowledges and agrees that Cowen Healthcare Royalty Management LLC and the entities it manages are not subject to any of the restrictions in this Commitment Letter.
2
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CONFIDENTIAL
We agree that, for the period of time commencing on the date of this Commitment Letter and continuing through the earliest of (x) 180 days following the date of this Commitment Letter, (y) the closing of both the Tender Offer and the Exchange and (z) the expiration or termination of the Tender Offer without a closing thereunder (the “Royalty Pharma Exclusivity Period”), neither we nor our affiliates (including any officer or directors of ours or our affiliates) shall, directly or indirectly, alone or in concert with others, solicit, initiate, encourage or facilitate (including by way of furnishing information or data) any inquiries from a third party or the making of any proposal or offer by a third party with respect to (a) any loan to any person or entity to finance or otherwise facilitate a transaction competitive with the Tender Offer, or (b) engage in a transaction competitive with the Tender Offer in any capacity whatsoever.
For the avoidance of doubt, if Ramius, NewCo or any of their affiliates complete the Tender Offer during the Ramius Exclusivity Period and regardless of whether NewCo elects to sell the Loan Notes to us, we shall have the Exchange right as specified under “Exchange Right” in the Term Sheet to acquire a one half interest in the Royalty (as defined in the Term Sheet) for $45 million in Loan Notes (if NewCo elects to sell the Loan Notes to us) or in cash (if NewCo elects not to sell us Loan Notes), which Exchange right is a binding obligation of Ramius, NewCo and their affiliates.
This Commitment Letter is furnished for your benefit, and may not be assigned by you (other than to NewCo or any other affiliate for the purpose of the Tender Offer) or relied on by any other person or entity. This Commitment Letter is delivered to you upon the condition that neither the existence of this Commitment Letter nor any of its contents shall be disclosed by you or any of your affiliates, directly or indirectly, to any other person, except that such existence and contents may be disclosed (i) to your (or NewCo’s or any other affiliate for the purpose of the Tender Offer) directors, officers, employees, advisors and agents, in each case on a confidential and “need-to-know” basis and only in connection with the Tender Offer, (ii) to Cypress and its directors, officers, employees, advisors and agents, in each case on a confidential and “need-to-know” basis and only in connection with the Tender Offer, (iii) in order to satisfy regulatory requirements or other requirements of law, and (iv) if determined by you in good faith to be to prudent, to shareholders in connection with disclosures related to a purchase of shares of Cypress, provided (x) such disclosure also states that the Commitment is subject to various conditions and that no shareholder is entitled to rely upon the Commitment or is a third party beneficiary of the Commitment and (y) you shall, to the extent legally permissible, provide us with 24 hours notice of such disclosure together with a copy of the proposed form of disclosure (or, if your counsel advises that such delay is inadvisable, then at least four hours notice) and take into account in good faith our reasonable comments.
3
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CONFIDENTIAL
Neither the existence of this Commitment Letter nor any of its contents shall be disclosed by us or any of our affiliates, directly or indirectly, to any other person, except that such existence and contents may be disclosed (i) to our directors, officers, investors, employees, advisors and agents, in each case on a confidential and “need-to-know” basis and only in connection with the Tender Offer, and (ii) in order to satisfy regulatory requirements or other requirements of law, provided (x) such disclosure also states that the Commitment is subject to various conditions and (y) we shall, to the extent legally permissible, provide you with 24 hours notice of such disclosure together with a copy of the proposed form of disclosure (or, if our counsel advises that such delay is inadvisable, then at least four hours notice) and take into account in good faith your reasonable comments.
No waiver, amendment or other modification of this Commitment Letter shall be effective unless in writing and signed by both parties. This Commitment Letter together with the Term Sheet sets forth the entire understanding of the parties with respect thereto and supersede any prior versions hereof or thereof. This Commitment Letter shall inure to the benefit of and be binding upon Ramius and Royalty Pharma and their respective successors, heirs and permitted assigns and no other person or entity.
The indemnification, exculpatory, expense reimbursement, confidentiality, exclusivity and standstill provisions of this Commitment Letter shall survive the termination hereof.
This Commitment Letter together with the Term Sheet shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws thereof that would apply any other law. Each of Ramius and Royalty Pharma hereby irrevocably agrees that any legal action or proceeding with respect to this Commitment Letter and the Term Sheet shall exclusively be brought in the federal or state courts located in New York County, New York. In the event that any such legal action or proceeding arises out of or relates to a Federal question, then such legal action or proceeding shall be brought in such federal court. In the event of any dispute arising under this Commitment Letter, the substantially prevailing party shall be entitled to recover its expenses relating to such dispute, including reasonable attorneys fees.
4
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CONFIDENTIAL
Please indicate your acceptance of the terms hereof by returning to us executed counterparts of this Commitment Letter not later than 5:00 p.m. Eastern Time, on September __, 2010. This Commitment Letter and the commitment of Royalty Pharma hereunder are conditioned upon your acceptance hereof and our receipt of executed counterparts hereof.
We are pleased to have been given the opportunity to assist you in connection with the Tender Offer.
Very truly yours,
ROYALTY PHARMA FINANCE TRUST
By: RP Management, LLC, as Administrator
By: /s/ Pablo Legorreta
Pablo Legorreta
Chief Executive Officer
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