Glossary of Hostile Takeover Terms with Discussion

As we turn another page in the AGN saga with the PFE deal termination I want to take the opportunity to say thanks to all of you in AGN Nation. As the husband of an AGN employee I see all the sacrifices that have been made and the work challenges brought on by the recent events and the long 2 year slog. I appreciate all that you do. This thread has been a safe haven for many of us and as we close one chapter, new ones will be written.

As we all know on AGN island, things happen in their own way and on their own time. I suspect in the near future many of us will be posting again about rumors, theories and wild opinions about what's next. Until then, hats off to all AGN employees and families.

P551
 






As we turn another page in the AGN saga with the PFE deal termination I want to take the opportunity to say thanks to all of you in AGN Nation. As the husband of an AGN employee I see all the sacrifices that have been made and the work challenges brought on by the recent events and the long 2 year slog. I appreciate all that you do. This thread has been a safe haven for many of us and as we close one chapter, new ones will be written.

As we all know on AGN island, things happen in their own way and on their own time. I suspect in the near future many of us will be posting again about rumors, theories and wild opinions about what's next. Until then, hats off to all AGN employees and families.

P551
Nice! Lucky wife.
 






  • Shoham   Apr 05, 2016 at 11:43: PM
I dont know what you do for a living but I hope it includes teaching or instruction, Dan. You are a master.

My day job involves building predictive analytics statistical models. I keep my LinkedIn profile public, so anyone who is interested can see more details. I accept any connection request from Allergan people.

No teaching or instructions in my day job.

Dan.
 






My day job involves building predictive analytics statistical models. I keep my LinkedIn profile public, so anyone who is interested can see more details. I accept any connection request from Allergan people.

No teaching or instructions in my day job.

Dan.
Dan - you are awesome. Through these stressful confusing times, your posts make it all so much bearable!!!!

P551 - I love the diversity of opinion!

Best thread on cafepharma!!!
 






  • Shoham   Apr 06, 2016 at 01:08: AM
Another interesting development ... Valeant says the special ad-hoc audit committee didn't find anything else in it's review. Convenient that is released at the same time as this inversion announcement, and it's hardly being talked about.

As far as I am concerned, this Ad Hoc Committee was always a non-credible whitewash tool. I'm not surprised.

We still have the same problem (with regard to the financial statements) I was calling out since October: Philidor is essentially an un-audit-able entity and it needs to be consolidated, for its entire existence (mainly 2014 and 2015), into the Valeant audited financial statements. I don't know how they are going to make that happen in a way PWC will sign: Are they going to get a qualified report? a going-concern? Are they going to take such a big charge against earnings that PWC will accept that the Philidor transgressions are covered against? I don't know. From my vantage point, with no insider information whatsoever, none of these routes look viable; but maybe they got some plan in mind.

The even larger issue (of Valeant's assets worth, in my opinion, less than their debt) was not even part of the AHC charter, so the "completion" of their work does not shed any lights on that front.

The part of their announcement that got my attention is that they plan to release audited financials on April 29. A few days ago, when they issued a press release saying they are asking some of their lenders to not pull covenant on them, they offered some serious cash in exchange for a month-long deadline extension to May 29 (they also said that if they won't get it, they'll file on April 29 in any event).

As seems to be the usual routine with Valeant, ever since I started paying attention to them two years ago (probably before too), each statement seems to make a lot of sense on it's own; but when you put them up together the disconnect is jaw dropping (sometimes even statements within the same press release). If they are capable of releasing the audited financial on 4/29, why would they offer serious cash for a month long extension? Would the 2015 audited financials look different if released on May 29, 2016 than on April 29, 2016? How can that be? And if not, then why pay cash for the extension? Then, today, they are saying that April 29 is final. Does that mean that the lenders didn't take their deal? Why would the lenders refuse serious cash in exchange for a month delay in filing a retrospective report? Whether the report is peachy or horrendous, how would getting it a month later not be worth the cash Valeant is offering?

None of this makes any sense. But the people generating those policies (the Valeant board) are highly-advised, highly-credentialed professionals (notwithstanding the withering scorn I regularly pour on them), so there has to be some logic that reconnects all those disconnects. My approach to understanding Valeant has always been to ignore the public cacophony and try and discern what must the board know that will make *all* their actions plausible.

My take this time: The lenders wouldn't take the cash in exchange for the delay because they want to start liquidating the company as soon as possible and every day that passes reduces what the company will liquidate for. You can't offer them cash in exchange for staying their hand, because that cash comes out of the eventual liquidation value they will get anyway. Note that not all lenders are created equally. Some are sufficiently secured that they would gladly do a "cash for extension" deal (I'm betting that some of those will accept the Valeant deal in the coming days and Valeant will make a big hoopla of it, trying to create an image that their turnaround strategy is gaining traction). But it just takes a very small number of lenders (sometimes just one), to say no. If the report doesn't have a covenant breaching element (which than graduates to Going Concern, as described in prior posts), Valeant would have already released it (does anyone still seriously think that the "we found nothing" AHC was really the delay? If yes, then why not release the audited report today?). So, it's obviously not a clean report. Since on 4/29 the lenders have the right to start liquidating the company, Valeant might as well announce that the audited reports will be filed on that day. Whether they do or don't is irrelevant; that's the day they run out of extensions. On that day, releasing an unclean report or failing to release a report at all, is the same. The company will have passed the cure period for the covenant default.

So Valeant makes a cheery announcement, keeps a confident demeanor in their tone, and tries to use the next 24 days to do something game-changer (like a major divestiture). They might keep the ball rolling just a bit longer, with ever more desperate tactics, but we are already in the final days of the implosion (and the 90% drop in stock price proves that the market knows this -- whatever the daily fluctuations might indicate).

Dan.
 






  • Shoham   Apr 07, 2016 at 04:17: AM
A mere 24 hours ago, I posted this:

As seems to be the usual routine with Valeant [..] each statement seems to make a lot of sense on it's own; but when you put them up together the disconnect is jaw dropping.

I was specifically questioning the whole business of paying for an extension:

If they are capable of releasing the audited financial on 4/29, why would they offer serious cash for a month long extension?

I predicted that some (but not enough) lenders will take the cash, and Valeant will make a big hoopla.

My take this time: The lenders wouldn't take the cash in exchange for the delay because they want to start liquidating the company as soon as possible and every day that passes reduces what the company will liquidate for. You can't offer them cash in exchange for staying their hand, because that cash comes out of the eventual liquidation value they will get anyway. Note that not all lenders are created equally. Some are sufficiently secured that they would gladly do a "cash for extension" deal (I'm betting that some of those will accept the Valeant deal in the coming days and Valeant will make a big hoopla of it, trying to create an image that their turnaround strategy is gaining traction).

I surmised that the Valeant approach is to generate an appearance of positive momentum for the next 24 days (while looking for a game changer) through cheery confident announcements. (However, cometh April 29, reality will catch up).

So Valeant makes a cheery announcement, keeps a confident demeanor in their tone, and tries to use the next 24 days to do something game-changer (like a major divestiture). They might keep the ball rolling just a bit longer, with ever more desperate tactics, but we are already in the final days of the implosion (and the 90% drop in stock price proves that the market knows this -- whatever the daily fluctuations might indicate).

So what happened in the next 24 hours:
1nd: Ackman says that the new CEO will take weeks, not months -- VRX is up 20% (on top of 10% the day before when they said the AHC found nothing)
2nd: After hours, they announced that the lenders have accepted their deal -- Up another 5% in AH trading; for a total of about 35% in 2 days (not bad for content-less announcements!)

The small print of the AH announcement is that it was only the secured lenders (the ones I was saying would love to take the deal, since it moves cash to them away from the unsecured ones).

The cash they are paying is quite consequential: 0.5% immediately, and a long-term increase of 1% in interest rate. If everyone accepts the deal (and if not then it's moot anyway), that's about $150M now and another $300M/year. If, say, the average debt is about 5 years, that's about $1.5B moved from the equity holders (assuming they aren't wiped out) to the debt holders.

But, the Valeant investors are back to their old mindlessness: Valeant puts up a rapid barrage of meaningless, but significant-sounding press releases, and the stock price rockets up (never mind that they just gave away 15% of the little equity they had left for nothing more than a 30 days extension to file a report that they say they don't even need).

So, which is it? Do they need the extension? Or don't they? One day they are offering cash for the extension (and saying they don't actually need it), the next day you say that they won't be using the extension in any event, and the very next day they happily announce that the cash-for-extension deal is accepted.

My take: They will continue with a sustained barrage of news that sounds awesome, but are actually quite devoid of any content, until the clock expires on them (in 22 days). If they haven't pulled a major game changer (like a big divestiture), then no amount of positive thinking will save them at that point. My betting is that they will manage to get a few more minor extensions, but will ultimately fail to find a true game-changer.

(Just to clarify that there is a real purpose to the debt negotiation: Assuming, as I am speculating, the audited financials is unclean or has some other covenant-breaching issue [not just lateness]; such would immediately graduate to GC, as discussed in prior posts. However, if VRX get substantially all lenders to agree to overlook the covenant breach, then it would not graduate to GC, and they can continue running the company a little longer -- hoping to find that magical game changer -- before the lenders inevitably take over when they can no longer service their debt).

Dan.
 






  • Shoham   Apr 07, 2016 at 04:40: AM
There is a post from a year-and-a-half-ago I wanted to revisit.

The first time I was asked about Pfizer was a few hours before the Actavis-Allergan deal was announced (November 16, 2014). Here is the question:

Dan- if the Actavis/allergan buyout happens- would Actavis be too pricy for a Pfizer tax inversion deal?

Here is how I answered:

There is no legal upper limit for the size of an inversion deal acquisition (only a lower limit -- the foreign company can't be smaller than about 1/4 the US one), but there are other issues with this kind of size.
[...]
This top-of-the-food-chain zone creates a long list of issues not seen at the next level. To begin with, it's almost impossible to get regulatory approval for any merger that will create a company that size
[...]
So, bottom line: Nothing is impossible, but being gobbled up by Pfizer isn't something I'd be too worried about right now.

So, basically, I said that it's almost impossible to have mergers that big because the regulators (to include Treasury) block them. I figured that the relevant CEOs know this and won't even bother trying.

Apparently, they never got the memo, and tried anyway -- only to be predictably thwarted.

Seriously, the more I think about it, the more I ask myself in wonderment: What were they thinking? That they will just fly under the radar? That no one will notice? What?

Dan.
 






dan,

Do you think VRX could do a fire sale for B&L part of their portfolio?

Allergan having got hurt with the Pfizer deal may look into it and go for it. The CEO said yesterday that it wasted most precious brand in eye care!!!
 






  • Shoham   Apr 07, 2016 at 12:02: PM
dan,

Do you think VRX could do a fire sale for B&L part of their portfolio?

Allergan having got hurt with the Pfizer deal may look into it and go for it. The CEO said yesterday that it wasted most precious brand in eye care!!!

I think Saunders was clearly in 'negotiations mode' when he made that remark.

The most realistic game changer move VRX can hope for in the next 22 days would be a major divestiture (they'll also do some cost-cutting, but they haven't been exactly generous with costs before; so hard to see what non-destructive cuts are available that they haven't already done). Selling the company or obtaining new financing (equity or debt) is out of the question. A new CEO could be refreshing, but not even a magician can salvage this situation.

When it comes to a major divestiture, there are really only 2 (maybe 3) possibilities: B&L and Salix (and maybe what's left of Medicis, as a distant 3rd, but they already divested much of that during the Allergan war). Salix is damaged goods, now that Allergan got permission to bring in generic competition to their core product. It is probably only worth a fraction of what they paid just last year (which itself is less than Pyott was willing pay after the failed due-diligence, and the greedy Salix Board -- thinking Pyott was desperate, when he wasn't -- insisted on getting the same price as before the dd failed).

So that just leaves B&L. After years of VRX claiming (including, quite prominently, during the Allergan war) that B&L has really taken off under their stewardship, those disposed to believing VRX are under the impression that B&L is worth today more than was paid for it. If it is, that will go a long way to giving the new CEO a path to salvage VRX. They could divest B&L and reduce the debt by such a big chunk that even with the diminished profits (now that B&L will no longer be part of VRX), the debt will be more manageable.

But, is B&L worth today more than it was purchased for? That's the $7B question. And the most obvious individual to answer this question, for multiple reasons, is Saunders. Being the last pre-Valeant CEO of B&L, he would be expected to be the most knowledgeable outsider of where the company can be taken and what's it worth when managed well. Additionally, as the CEO of Allergan, with a large practice in the same field, he would top any prospective buyers' short list. Add to that the perfectly-timed fortuitous (for VRX asset divestiture potential) collapse of the PFE deal -- freeing AGN to make other acquisitions (with it's apparently deal-loving CEO). So it's natural that all eyes will be looking at Saunders.

Saunders knows this. He isn't rushing to to bail VRX out. There is no love lost between them. He was fired as CEO when his investors sold B&L to Valeant; he was well compensated for his services and firing, but still. He "returned a favor" when he snatched Allergan from VRX's machination and "prematurely" cut off their pyramid scheme, ultimately setting the stage to the current, belated, collapse.

He isn't rushing, but, if I may speculate, he would be more than happy to get it for a fire price sale. It would be quite a feather to his cap to buy B&L back for less than he sold it for. Such a sale-at-loss may not be exactly the game changer Valeant is looking for, but it might be the best they will be able to get. If Saunders says "no" to the price they will be asking for, it's hard to see how other buyers will feel that they can obtain a greater value from B&L than he can.

My betting: I think there is a better chance than not that in the coming days and weeks we will see a very serious play on selling B&L to Allergan. Whether Saunders can squeeze Valeant on pricing enough to make a deal happen, that's anyone's guess.

(So, assuming he does, allow me to be the first to, speculatively, welcome the B&L people to the Allergan family :D:D:D)

Dan.
 












  • Shoham   Apr 07, 2016 at 12:37: PM
As a Bausch person, that sounds good however, what about the 4%max for selling?

Doesn't apply when proceeds are used to reduce debt (the purpose of the limit is to prevent a company from borrowing to buy assets and then sell the assets without repaying the debt). In fact, under the newly negotiated debt covenants, Valeant is Encouraged to sell assets and is required to use proceeds to pay down debt,

Dan.
 












There is a post from a year-and-a-half-ago I wanted to revisit.

The first time I was asked about Pfizer was a few hours before the Actavis-Allergan deal was announced (November 16, 2014). Here is the question:



Here is how I answered:



So, basically, I said that it's almost impossible to have mergers that big because the regulators (to include Treasury) block them. I figured that the relevant CEOs know this and won't even bother trying.

Apparently, they never got the memo, and tried anyway -- only to be predictably thwarted.

Seriously, the more I think about it, the more I ask myself in wonderment: What were they thinking? That they will just fly under the radar? That no one will notice? What?

Dan.
They were expecting regulators to play by the rules, not to be arbitrary. I agree with P551 on this. Many other people have come out publicly since the move and are saying how disgusted they are with how the Treasury operated. They are a puppet to Obama, plain and simple and they blatantly punished AGN/PFE. This move was not really expected, by anyone. People figured t he current laws would be all that applied.
 






  • Shoham   Apr 08, 2016 at 05:21: PM
They were expecting regulators to play by the rules, not to be arbitrary. I agree with P551 on this. Many other people have come out publicly since the move and are saying how disgusted they are with how the Treasury operated. They are a puppet to Obama, plain and simple and they blatantly punished AGN/PFE. This move was not really expected, by anyone. People figured t he current laws would be all that applied.

There is opinion, and there is serving the shareholders.

One can have any opinion regarding the fairness/acceptability/disgust/politicization/whatever of this, or any other, action; but business leaders should serve their shareholders regardless.

Policymakers, scholars, journalists, and voters should absolutely develop opinions regarding this and other policies and actions. (I posted my own opinion here a few days ago, but my opinion is in no way more important than yours). CEO's and investors, are, of course, free to develop, articulate, and lobby for their opinion as well; but the onus upon them is to anticipate actions whether they agree or disagree with the instigating policies and processes.

In this instance, as posted a year and a half ago, very long before the Pfizer acquisition came to the forefront (and not even specifically addressing inversion), I stated that "top-of-the-food-chain" mergers (resulting in a top-10 Enterprise Value company) are almost impossible because regulators block them. One prospective merger may be blocked by anti-trust regulators, another by a drug licensing board, and yet another by Treasury (they don't actually block mergers, they just issue rules that take out the component of the value proposition they consider counter to the public good; if that's all there is to the merger value creation, then the merger will be called off). There are so many regulators, in so many countries, and it just takes one to kill a deal. As best as I can tell, going back decades, or even centuries, no top-of-the-food-chain merger was ever approved unless there was a demonstrable net public good gain (for example in preventing a bankruptcy, combining scientific resources, interconnecting service networks, supplying wartime needs, etc.). Reducing tax burden (or competition) was never viewed as a public good; obviously.

You would think that any CEO contemplating a TotFC merger would think very hard how to make it regulator-bullet-proof -- starting with a strong articulation of the public good. If all you got is a strategy to move money from Treasury to shareholders, then, what do you think? Treasury will just take it in silence? They'll find a way to kill the deal. AbbVie-Shire (familiar to long-time readers of this thread) wasn't even a TotFC inversion merger and Treasury had no qualms shutting it down midstream. So don't say that their move was so unexpected (it was unexpected then, but shouldn't have been now).

Wall Street figured that out. That's the reason for the super-high spread. It wasn't the lack of Arbs, as many tried to rationalize. The reason AGN was trading above standalone value at all was that Wall Street was holding out hope that there is some value creation articulation beyond just inversion (in which case the merger would have survive Treasury's action; we can now reverse-calculate that Wall Street was assigning something like 50% chance to the merger, see prior post for calculation). Turns out there was none.

Dan.
 






They were expecting regulators to play by the rules, not to be arbitrary. I agree with P551 on this. Many other people have come out publicly since the move and are saying how disgusted they are with how the Treasury operated. They are a puppet to Obama, plain and simple and they blatantly punished AGN/PFE. This move was not really expected, by anyone. People figured t he current laws would be all that applied.


Regardless of politics, this was seen coming from miles away. PFE was never going to digest AGN. If PFE cared about AGN and the inversion at the end of it, then they would have waited till October when the "new" rules would have lapsed due to Warner 36 mark.

Imo and conspiracy ways, I bet some in PFE leadership green lighted Lew to make the ruling with the understanding that PFE wouldnt make a big deal about it. After all, the only one with egg on the face is BS.
 












  • Shoham   Apr 09, 2016 at 02:04: AM
Dan, why would any company buy B&L while it is currently subject of a DOJ investigation? Why would a board approve such purchase that comes with such an unknown liability?

It's all a matter of price. Unless the liabilities are so severe as to be greater than the value of the asset, an estimation of the cost of the liability is simply worked into the purchase cost.

If estimating the liability is really hard, it can still be controlled for by setting an escrow account to hold part of the sales proceeds until the liability is resolved or dismissed. Alternatively, DOJ can be part of the deal (they usually look favorably at sales of assets from those who may have committed wrongdoing to cleaner hands; so they will name their price and it would just be worked into the deal).

Dan.
 


















Dan-not that anyone can truly predict the stock market but given the end of Pfizer/Allergan and the Agn stock taking a hit-how many months/years before the stock goes to its "natural" high? Shire seemed to rebound to it's price after some 6 months when it's deal was thwarted, but Valeant was glorified and not vilified as it is today--which really seems to affect agn. Valeant could go on for a couple of years with Ackman's antics. I also feel that Allergan is somehow not convincing shareholders of its ability to he a strong company on its own (ie no price gouging, no mergers etc).