May 1, 2011 – By Katie Reid
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ZURICH (Reuters) - Swiss biotech group Actelion Ltd <ATLN.VX> is now facing a tougher battle at its annual general meeting next week after a jury decided Asahi Kasei Pharma Corporation <3407.T> should be awarded up to $547 million.
Actelion said it may appeal the jury's decision in the Superior Court of the State of California, which regards a licensing and development dispute with Actelion's unit CoTherix.
The amount being awarded to Asahi is considerably higher than expected and could further rattle shareholders after a string of product setbacks for Actelion last year.
Actelion said in a statement the jury would continue deliberations regarding punitive awards on Tuesday.
"Once the jury has concluded their deliberations, Actelion will decide on potential further steps, including (but not limited to) an appeal," Actelion said in a statement.
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Asahi filed a complaint at the State Court of California at the end of 2008 against Actelion and its subsidiaries Actelion Pharmaceuticals US Inc, Actelion Pharmaceuticals Ltd, Actelion US Holding Company, CoTherix, Inc and three individual officers.
The dispute concerns a licensing and development agreement between Asahi and CoTherix for the drug compound fasudil that was terminated when Actelion bought CoTherix in 2007.
"We are extremely disappointed by the poor management oversight by the current board of directors and the handling of such a major legal case," Elliott, which now holds more than 6 percent of Actelion, said in a letter to the Actelion board.
"Only a fundamental refresh of the board with new members, a new chairman, and a clear separation between the board and the management can resolve these matters comfortably," Elliott said, adding this case raised questions about Chief Executive Jean-Paul Clozel's leadership going forward.
The hedge fund, which has a track record of activism and pushing for radical change at a range of companies, has called for both current Chairman Robert Cawthorn and Clozel to step down from the board.
Elliott, which has also urged Actelion to consider putting itself up for sale, has proposed its own slate of six drug industry and M&A experts, including former Novartis <NOVN.VX> executive James Shannon, who it wants to chair Actelion.
"Elliott's chances have definitely increased, although I am not sure how many proxy institutions will now change their views on the back of this," Helvea analyst Olav Zilian said.
Elliott also said it was exploring various legal options, including whether Actelion has complied with ad hoc publication requirements, whether the board and management have breached fiduciary duties and whether there is criminal liability of management involved.
Actelion was not immediately available to comment on the letter.
(Editing by Greg Mahlich, Bernard Orr)