Client: Indevus Pharmaceuticals, Inc.

Scenario: Indevus Pharmaceuticals is a specialty pharmaceutical company engaged in the acquisition, development and commercialization of products to treat conditions in urology and endocrinology. Burns & Levinson was engaged to provide legal assistance with respect to Indevus’ proposed acquisition of Valera Pharmaceuticals, a developer of urology and endocrinology products. Mergers and acquisitions in the pharmaceutical industry involve in-depth scrutiny of a wide range of issues including the strength of the company’s products and the associated patent protection, licensing agreements, pending FDA approvals, client base, funding sources, securities regulations and more.

Moreover, in addition to the common stock consideration that Indevus would issue to acquire Valera, the acquisition also involved a complex “earn out” arrangement whereby stock would be issued based on the achievement of future milestones. Based on the nature of the acquisition and the consideration, the deal would require approval of the shareholders of Indevus and Valera. Additionally, before they could proceed with a shareholder vote, the company was required to prepare a registration statement for the SEC. If the SEC decided to hold up the registration statement for further review this could have delayed the acquisition

Burns & Levinson had long been corporate counsel to Indevus Pharmaceuticals, and jumped into this latest project with vigor. In preparation, the firm conducted extensive due diligence to uncover any potential issues with Valera. Burns & Levinson then took the lead role in collaborating closely with Valera’s legal team to draft and coordinate the securities filings and other materials required for shareholder approval and closing of the acquisition. This included, among other things, the joint filing of an S-4 registration statement and joint proxy statement/prospectus. The aim of this primary filing was to prepare shareholders for the required votes and give them a clear view of the benefits and risks of the merger.

During the course of preparing the SEC and regulatory filings and handling related negotiations with Valera, several issues pertaining to securities laws and accounting practices arose, and the Burns & Levinson team quickly tackled and resolved these in a positive manner. “Joe Volman and Chad Porter at Burns & Levinson are very skilled attorneys,” said Mark Butler, executive vice president, chief administrative officer and general counsel for Indevus Pharmaceuticals. “They’re excellent problem solvers. They hone in on a problem and get right to the heart of it in a very productive manner.”

Value added: “It’s important to have a legal team that will protect your interests and ensure the securities aspects of a transaction are taken into consideration,” Butler added. “In these types of transactions, many issues emerge that require strong knowledge of drug discovery and other aspects of our business. Burns & Levinson brings this expertise to the table not only in M&A, but issues such as intellectual property, SEC filings, and FDA approvals.

Butler said it is equally important to have attorneys who not only understand its business, but who are adept at working well with others. “It takes finesse to convince others that what you want is rationale, reasonable, and fair. That’s why an attorney who has good rapport with all parties involved is a real benefit,” said Butler.

Ultimately, the SEC gave a green light to the 400-page SEC registration statement, enabling Indevus to proceed to a stockholder vote for this important strategic acquisition. The acquisition was approved by the stockholders of Indevus and Valera and closed on April 18, 2007, “by all accounts, everyone is pleased,” Butler said.