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Express Scripts asks for more time on Caremark deal


St. Louis, MO – St. Louis-based Express Scripts is seeking more time for federal review of its hostile takeover bid for Caremark, its rival in the prescription drug insurance business Caremark.

Express said Wednesday it will voluntarily withdraw an existing filing with the Federal Trade Commission and re-file it next week to allow the FTC another month to review the proposed transaction.

Otherwise, the agency would have had to announce by tomorrow whether it had antitrust concerns over the bid.

Nashville-based Caremark Rx Inc., the nation's second-largest pharmacy benefits manager, says it still favors an acquisition offer by CVS Corp., the nation's largest operator of drugstores. Express Scripts, headquartered in Maryland Heights, is the third-biggest pharmacy benefits manager in the U.S.

CVS announced Nov. 1 that it planned to acquire Caremark for CVS stock, a deal currently valued at about $24.6 billion. Express Scripts launched its own hostile bid for Caremark on Dec. 18, an offer now worth about $26 billion.

But Caremark has since rejected the Express Scripts offer, saying it was inferior to the CVS deal because regulators might not approve it.

The agreement between CVS and Caremark has already received antitrust approval. Caremark shareholders will meet Feb. 20 to consider the CVS deal, and CVS shareholders will meet Feb. 23.

CVS said in a statement that the decision by Express Scripts to refile is the "clearest indication yet of the substantial antitrust risks inherent in its hostile takeover proposal" and that "three-into-two" mergers are often unsuccessful and almost always delayed by regulators.

The statement also said Express Scripts' refiling "confirms that the FTC staff and the 22 states that are reviewing the merger have identified serious antitrust concerns that, at a minimum, will require in-depth investigation."

Caremark raised the same point in a statement that said, "This is a transparent ploy by Express Scripts to avoid receiving an extensive second request for information and documents at this time from the Federal Trade Commission and to mislead Caremark shareholders into believing that Express Scripts' risky and highly conditional offer may be close to receiving regulatory approval."

Shares of Express Scripts fell 39 cents to close at $69.52 on the Nasdaq Stock Market. Caremark shares rose 54 cents to end at $61.26, while CVS shares gained 60 cents, or 1.82 percent, to finish at $33.65 on the New York Stock Exchange.

Constantine Davides, an analyst with Boston-based Susquehanna Financial Group, said it's not surprising Express Scripts is refiling given the size of the deal, which will likely be heavily scrutinized by regulators.

He said many analysts expected Friday to come and either the FTC was going to issue a second request or Express Scripts was going to refile.

"It's a big acquisition," Davides said. "Regulatory approval can still happen, it just probably wasn't going to happen in the first 30 days."

The Caremark-CVS deal is being challenged in separate lawsuits filed by Express Scripts and shareholders, who contend it favors Caremark insiders.

Express Scripts repeated the claim in a response to a Caremark ad published Wednesday urging its shareholders to approve the CVS deal. "It is outrageous that Caremark would spend stockholder money attempting to defend the lavish payments that its senior management would receive in a combination with CVS.

"We have trouble understanding how a 'merger of equals' could possibly warrant almost $100 million in sweetheart 'change of control' payments to people who will largely continue to be employed by the merged company," the statement reads.


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