News Release Detail
Mylan To Commence Formal Offer To Acquire Perrigo For US$60 In Cash And 2.2 Mylan Shares Per Perrigo Share
POTTERS BAR,
Mylan today issued a Rule 2.5 announcement setting forth its legally-binding commitment to commence an offer for the entire issued and to be issued share capital of Perrigo. Under the terms of the offer announced today, Perrigo shareholders will receive
It is expected that, following the consummation of the transaction, Mylan shareholders will own approximately 61.8% of the outstanding Mylan ordinary shares on a fully diluted basis and former Perrigo shareholders will own approximately 38.2% of the outstanding Mylan ordinary shares on a fully diluted basis.
Mylan expects the combination will result in at least
Mylan's Executive Chairman
"We are taking this next critically important step, which begins the clock under the rigid timeframe set by the Irish Takeover Rules, in order to continue to ensure clarity and certainty around our intentions for investors, particularly in light of the strong market reaction to this combination and demands from investors for us to take this step.
"Not only have we fully financed our offer and already incurred significant non-refundable financing fees, our offer also is cash confirmed and not conditional on due diligence. Additionally, we also have made a "hell or high water" commitment to obtain US antitrust clearance. All of this further underscores our confidence in, and commitment to, completing this transaction in the timeliest manner possible.
"Mylan fully intends to comply with all requirements of the Irish Takeover Rules that govern this process. As such, we would like to caution investors that we will be limited in our ability to disclose certain forward-looking information. However, we believe the financial and strategic benefits outlined in our Rule 2.4 announcement and today's Rule 2.5 announcement leave no doubt as to the value that would be created by this combination.
"While we are disappointed by the decision of the Perrigo Board to reject our proposal without entering into discussions thus far, we are still hopeful and confident that we can engage with their Board about our offer and how to best bring our organizations together.
"As evidenced by today's Rule 2.5 announcement, we remain steadfast in our offer to acquire Perrigo, given the substantial opportunities we anticipate it will create for our company, shareholders and other stakeholders. We will not be distracted from the pursuit of this exciting, value-creating combination."
Mylan's Chief Executive Officer
The cash portion of the consideration in the offer will be financed by a new bridge credit facility arranged by
The making of the offer to Perrigo shareholders is pre-conditioned on the first in time of the following having occurred: (i) the expiration or termination of all applicable waiting periods (including any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, of
Goldman Sachs is acting as financial advisor, and
This announcement is being made pursuant to Rule 2.5 of the Irish Takeover Rules.
ABOUT MYLAN
Mylan is a global pharmaceutical company committed to setting new standards in healthcare. Working together around the world to provide 7 billion people access to high quality medicine, we innovate to satisfy unmet needs; make reliability and service excellence a habit; do what's right, not what's easy; and impact the future through passionate global leadership. We offer a growing portfolio of around 1,400 generic pharmaceuticals and several brand medications. In addition, we offer a wide range of antiretroviral therapies, upon which approximately 40% of HIV/AIDS patients in developing countries depend. We also operate one of the largest active pharmaceutical ingredient manufacturers and currently market products in about 145 countries and territories. Our workforce of approximately 30,000 people is dedicated to creating better health for a better world, one person at a time. Learn more at mylan.com.
THE DISTRIBUTION OF THIS COMMUNICATION IN CERTAIN JURISDICTIONS MAY BE RESTRICTED OR AFFECTED BY THE LAWS OF SUCH JURISDICTIONS. ACCORDINGLY, COPIES OF THIS COMMUNICATION ARE NOT BEING, AND MUST NOT BE, MAILED OR OTHERWISE FORWARDED, DISTRIBUTED OR SENT IN, INTO, OR FROM ANY SUCH JURISDICTION.
For immediate release
OFFER BY
THE ENTIRE ISSUED AND TO BE ISSUED SHARE CAPITAL OF
1. Introduction
On
Mylan has repeatedly offered to have a constructive dialogue with Perrigo on the Proposal, but Perrigo has refused. Mylan is disappointed that the Perrigo Board has not engaged with it in discussions about this offer which provides significant value creation for the Perrigo Shareholders. Nonetheless, Mylan believes that a combination of Mylan and Perrigo offers clear and compelling strategic and financial benefits to shareholders and other stakeholders of both companies. Mylan therefore remains committed to completing this transaction.
Mylan is making this announcement solely on the basis of publicly available information, as it has not been given any access to due diligence by Perrigo. Mylan's 2.4 Announcement stated that the making of an offer was subject to the pre-condition of confirmatory due diligence (the "Due Diligence Pre-Condition"), which has not been satisfied. The Due Diligence Pre-Condition is capable of waiver by Mylan at its discretion. In issuing this announcement, Mylan hereby waives the Due Diligence Pre-Condition.
2. Terms of the Offer
Mylan today announces an offer for the entire issued and to be issued share capital of Perrigo. Under the terms of the Offer and subject to the HSR Pre-Condition and the conditions and other terms set forth in Appendix I, Perrigo Shareholders will receive
The Offer would provide a very significant cash payment to Perrigo Shareholders. In addition, even with conservative assumptions for what Mylan believes to be significant and meaningful operational synergies, Mylan believes the Offer would provide Perrigo Shareholders with an equity value in the combined company that is even greater than their equity ownership in Perrigo today.
It is expected that, following the consummation of the Offer and the compulsory acquisition by Mylan of any Perrigo Shares not acquired pursuant to the Offer, Mylan shareholders will own approximately 61.8% of the outstanding Mylan Shares on a fully diluted basis and former Perrigo Shareholders will own approximately 38.2% of the outstanding Mylan Shares on a fully diluted basis.
The making of the Offer is pre-conditioned on the first in time of the following having occurred: (i) the expiration or termination of all applicable waiting periods (including any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, of
Mylan has an unconditional commitment to take all actions, including making regulatory submissions, responding to information requests and doing everything necessary to procure a decision from the
Subject to the HSR Pre-Condition being satisfied or waived by Mylan, the Offer will be made subject to the conditions and other terms set forth in Appendix I, each of which will also be set forth in the Offer Document. The Offer will also be subject to the further terms to be set out in the Offer Document and the Acceptance Documents.
No fractions of Mylan Shares comprising the Share Consideration will be issued to Perrigo Shareholders. Any fractional entitlements will be rounded up or down to the nearest whole number (with fractional entitlements to 0.5 of a Mylan Share being rounded up).
Mylan is required to file a registration statement on Form S-4 (a "Registration Statement") with the
The Perrigo Shares will be acquired pursuant to the Offer fully paid and free from all Encumbrances and together with all rights now or hereafter attaching thereto (including without limitation voting rights and the right to receive, and retain in full, all dividends and other distributions (if any) declared, made or paid, or any other return of capital (whether by reduction of share capital or share premium account or otherwise) made on or after the date of this announcement). Mylan reserves the right to reduce (subject to the consent of the
The Offer will not extend to any Perrigo Shares which are cancelled after the date the Offer is made or which are held, or become held, as treasury shares.
3. Compelling Reasons for Acceptance
Mylan believes that the Offer is compelling given that:
- the Offer Price represents a meaningful premium for the Perrigo Shareholders;
- if the Offer is consummated, Perrigo Shareholders will become shareholders of Mylan, which has a clear track record of creating shareholder value, with an annualized three year total shareholder return of approximately 36 percent;
- the combination of Mylan and Perrigo will result in a combined company with a strong financial profile, including:
- approximately
US$15.3 billion in 2014 pro forma sales; - immediate accretion to EPS on a fully-synergized basis;
- at least
US$800 million of annual pre-tax operational synergies expected by the end of year four following the consummation of the Offer; - substantial free cash flows to drive rapid deleveraging and enhanced reinvestment into the business, with the combined company expected to maintain an investment grade credit rating;
- opportunities for meaningful growth given the strength of the combined businesses, rich pipeline of launches and opportunities to mean even more to customers across business lines; and
- potential for continued expansion through business development and acquisitions across business lines; and
- approximately
- the Offer is fully financed, cash confirmed and not conditional on due diligence.
Moreover, Mylan is confident in its ability to integrate Perrigo. Mylan has a demonstrated ability to acquire and integrate large and complex assets, with a proven track record of achieving and exceeding synergy targets and maximizing the values of the assets acquired in past transactions. In addition, Mylan believes that its and
In addition to the compelling value to shareholders, a combination of Mylan and Perrigo would offer substantial benefits to the other stakeholders of both companies. For example, the combination would provide a broader variety of opportunities to employees and increased stability for the communities in which the companies operate and serve. The position of creditors, customers and suppliers would also be enhanced by the combined company's scale and significant cash flows, and patients would receive improved access to affordable, high quality medicine through increased scale across geographies and robust capabilities to drive innovation.
4. Information About Mylan
Mylan is a global pharmaceutical company committed to setting new standards in healthcare. Working together around the world to provide 7 billion people access to the broadest range of high quality, affordable medicine, Mylan innovates to satisfy unmet needs; makes reliability and service excellence a habit; does what's right, not what's easy; and impacts the future through passionate global leadership. Mylan offers a growing portfolio of around 1,400 generic pharmaceuticals and several brand medications. In addition, Mylan offers a wide range of antiretroviral therapies, upon which approximately 40% of HIV/AIDS patients in developing countries depend. Mylan also operates one of the largest active pharmaceutical ingredient ("API") manufacturers, and currently market products in about 145 countries and territories. Mylan's workforce of approximately 30,000 people is dedicated to creating better health for a better world, one person at a time. Learn more about Mylan at mylan.com.
Mylan is a public limited liability company (naamloze vennootschap) organized and existing under the laws of
5. Information About Perrigo
Perrigo, a top five global over-the-counter ("OTC") consumer goods and pharmaceutical company, offers consumers and customers high quality products at affordable prices. From its beginnings in 1887 as a packager of generic home remedies, Perrigo has grown to become the world's largest manufacturer of OTC products and supplier of infant formulas for the store brand market. Perrigo is also a leading provider of generic extended topical prescription products and receives royalties from Multiple Sclerosis drug Tysabri®. Perrigo provides "Quality Affordable Healthcare Products®" across a wide variety of product categories and geographies primarily in
Perrigo is incorporated under the laws of
Tysabri® is a registered trademark of Biogen MA Inc. Quality Affordable Healthcare Products® is a registered trademark of
6. Financing the Offer
The Cash Consideration will be financed by a new bridge credit facility arranged by
Goldman, Sachs & Co., as financial advisor to Mylan, is satisfied that sufficient resources are available to satisfy in full the Cash Consideration payable upon full acceptance of the Offer.
7.
The Offer will be extended to any Perrigo Shares which are issued or unconditionally allotted and fully paid (or credited as fully paid) while the Offer remains open for acceptance (or, subject to the Irish Takeover Rules, by such earlier date as Mylan may decide), including, without limitation, any Perrigo Shares issued pursuant to the exercise of options to subscribe for Perrigo Shares or rights to otherwise acquire Perrigo Shares under the Perrigo Share Plans.
Mylan will make appropriate proposals to the holders of options to subscribe for Perrigo Shares or rights to otherwise acquire Perrigo Shares under the Perrigo Share Plans (the "Perrigo Equity Award Holders"), subject to the Offer becoming or being declared unconditional in all respects.
8. Disclosure of Interests and Short Positions in Perrigo
As at
9. Compulsory Acquisition, De-listing and Re-registration
If the Offer becomes or is declared unconditional in all respects and sufficient acceptances have been received, Mylan intends to apply the provisions of Section 204 of the Companies Act of 1963 of
As soon as it is appropriate and possible to do so, and subject to the Offer becoming or being declared unconditional in all respects, Mylan intends to apply for the cancellation of the listing and trading of Perrigo Shares on the
Following cancellation of the listing and trading of Perrigo Shares on the
10. Mylan Shareholder Approval and Listing Application
Mylan Shareholders must approve the Offer, the issuance of the Share Consideration and any other resolutions instrumental to the Offer prior to the completion of the Offer. The necessary resolutions will therefore be put to an extraordinary general meeting of Mylan. In addition, prior to the completion of the Offer, application will be made for the admission to trading on NASDAQ of the new Mylan Shares that will comprise the Share Consideration.
11. Non-Irish or US Shareholders
The availability of the Offer to persons not resident in
12. Takeover Rules Derogations
Rule 10.6 Derogation
Rule 10.6 of the Irish Takeover Rules states that, except as otherwise directed by the Panel, the Offer shall be deemed to become unconditional as to acceptances and the acceptance condition of the Offer shall be deemed satisfied when and only when Mylan's receiving agent issues a certificate to Mylan which certifies that the number of acceptances of the Offer received, together with the number of shares otherwise acquired, are sufficient to meet the requirements of the acceptance condition of the Offer and that this certificate must be issued promptly once the receiving agent is satisfied that the acceptance condition has been met.
Rule 34 of the Irish Takeover Rules states that an acceptor of the Offer shall be entitled to withdraw his or her acceptance from the date which is 21 calendar days after the first closing date of the Offer, if the Offer has not by such date become unconditional as to acceptances. Such entitlement to withdraw acceptances is exercisable until the earlier of: (i) the time at which the Offer becomes unconditional as to acceptances; and (ii) the final time at which the Offer could become unconditional as to acceptances pursuant to the Irish Takeover Rules.
In contrast to the Irish Takeover Rules (which provide for withdrawal rights only during limited times during the Offer Period), US securities laws require Mylan to permit acceptors of the Offer to withdraw their acceptances at any time from posting of the Offer Document until the Offer is declared wholly unconditional or lapses.
On
Rule 13.2 Consent
Rule 13.2 of the Irish Takeover Rules states that, except with the consent of the Panel, a person shall not announce pursuant to Rule 2.5 of the Irish Takeover Rules a firm intention to make an offer (i.e. this announcement) the making of which would be subject to any pre-condition.
On
The derogation described above (in relation to Rule 10.6 of the Irish Takeover Rules) requires the Offer to be wholly unconditional by no later than the sixtieth calendar day following the posting of the Offer Document ("Day 60").
All applicable waiting periods (including any extensions thereof) under the HSR Act must expire or terminate before Mylan consummates the Offer. Based on previous transactions in the pharmaceutical industry, it is estimated that it could take between four and seven months for such periods to expire. There is therefore little or no prospect of Mylan being able to satisfy such requirement in time to prevent the Offer from lapsing (i.e. by Day 60).
In order to resolve this conflict and to make it possible for the Offer to become wholly unconditional by the deadlines imposed by the Irish Takeover Rules, the
13. General
Subject to the HSR Pre-Condition being satisfied or waived by Mylan, the Offer will be made subject to the conditions and other terms set out in Appendix I, each of which will also be set out in the Offer Document. The Offer Document will include full details of the Offer and the expected timetable and will be accompanied by the Acceptance Documents.
The Offer Document and the Acceptance Documents will be despatched to Perrigo Shareholders and, for information only, to Perrigo Equity Award Holders promptly after the Registration Statement is declared effective by the
Appendix II contains the bases of calculation and sources of certain information contained in this announcement. Appendix III sets out definitions of certain terms used in this announcement. Appendix IV sets out the report of the Irish firm of
This announcement is being made pursuant to Rule 2.5 of the Irish Takeover Rules.
Mylan reserves the right, with the consent of the
RESPONSIBILITY STATEMENT
The directors of Mylan accept responsibility for the information contained in this announcement, save that the only responsibility accepted by the directors of Mylan in respect of the information in this announcement relating to Perrigo, the
DEALING DISCLOSURE REQUIREMENTS
Under the provisions of Rule 8.3 of the Irish Takeover Rules, if any person is, or becomes, 'interested' (directly or indirectly) in, 1% or more of any class of 'relevant securities' of Perrigo or Mylan, all 'dealings' in any 'relevant securities' of Perrigo or Mylan (including by means of an option in respect of, or a derivative referenced to, any such 'relevant securities') must be publicly disclosed by not later than
Under the provisions of Rule 8.1 of the Irish Takeover Rules, all 'dealings' in 'relevant securities' of Perrigo by Mylan or 'relevant securities' of Mylan by Perrigo, or by any party acting in concert with either of them, must also be disclosed by no later than 12 noon (
A disclosure table, giving details of the companies in whose 'relevant securities' 'dealings' should be disclosed, can be found on the
Interests in securities arise, in summary, when a person has long economic exposure, whether conditional or absolute, to changes in the price of securities. In particular, a person will be treated as having an 'interest' by virtue of the ownership or control of securities, or by virtue of any option in respect of, or derivative referenced to, securities.
Terms in quotation marks are defined in the Irish Takeover Rules, which can also be found on the
Goldman Sachs International, which is authorized by the
ADDITIONAL INFORMATION
In connection with the Offer, Mylan expects to file certain materials with the
A copy of this communication will be available free of charge at the following website: perrigotransaction.mylan.com. Such website is neither endorsed, nor sponsored, nor affiliated with Perrigo or any of its affiliates. PERRIGO® is a registered trademark of
PARTICIPANTS IN SOLICITATION
This communication is not a solicitation of a proxy from any investor or shareholder. However, Mylan and certain of its directors, executive officers and other members of its management and employees may be deemed to be participants in the solicitation of proxies in connection with the Offer under the rules of the
NON-SOLICITATION
This communication is not intended to, and does not, constitute or form part of (1) any offer or invitation to purchase or otherwise acquire, subscribe for, tender, exchange, sell or otherwise dispose of any securities, (2) the solicitation of an offer or invitation to purchase or otherwise acquire, subscribe for, sell or otherwise dispose of any securities or (3) the solicitation of any vote or approval in any jurisdiction pursuant to this communication or otherwise, nor will there be any acquisition or disposition of the securities referred to in this communication in any jurisdiction in contravention of applicable law or regulation. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the US Securities Act.
FURTHER INFORMATION
The distribution of this communication in certain jurisdictions may be restricted or affected by the laws of such jurisdictions. Accordingly, copies of this communication are not being, and must not be, mailed or otherwise forwarded, distributed or sent in, into, or from any such jurisdiction. Therefore, persons who receive this communication (including, without limitation, nominees, trustees and custodians) and are subject to the laws of any such jurisdiction will need to inform themselves about, and observe, any applicable restrictions or requirements. Any failure to do so may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, Mylan disclaims any responsibility or liability for the violations of any such restrictions by any person.
FORWARD-LOOKING STATEMENTS
This communication contains "forward-looking statements." These statements are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements may include, without limitation, statements about the proposed transaction, benefits and synergies of the proposed transaction, future opportunities for Mylan, Perrigo, or the combined company and products and any other statements regarding Mylan's,
NO PROFIT FORECAST / ASSET VALUATIONS
No statement in this announcement is intended to constitute a profit forecast for any period, nor should any statements be interpreted to mean that earnings or earnings per share will necessarily be greater or lesser than those for the relevant preceding financial periods for Mylan or Perrigo as appropriate. No statement in this announcement constitutes an asset valuation.
SYNERGY STATEMENT
There are various material assumptions underlying the Synergy Statement, which may result in the value in the Synergy Statement being materially greater or less than estimated. The Synergy Statement should therefore be read in conjunction with the key assumptions underlying such estimates.
The Synergy Statement should not be construed as a profit forecast or interpreted to mean that the combined earnings of Mylan and Perrigo in any period following this announcement would necessarily match or be greater than or be less than those of Mylan and/or Perrigo for the relevant preceding financial period or any other period.
The Synergy Statement has been reported on for the purposes of Rule 19.3(b)(ii) of the Irish Takeover Rules by (i) the Irish firm of
SOURCES AND BASES OF INFORMATION
Sources and bases of information contained in this announcement can be found in Appendix II of this announcement.
APPENDIX I
PRE-CONDITION TO THE MAKING OF THE OFFER
The making of the Offer and Mylan's obligation to despatch the Offer Document will be subject to the following pre-condition:
US Hart-Scott-Rodino Clearance
to the extent applicable to the Offer or its implementation, the first in time of the following having occurred: | ||
(a) |
all applicable waiting periods (including any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, of | |
(b) |
a final decision to clear or approve the consummation of the acquisition contemplated by the Offer under the HSR Act having been obtained, irrespective of the conditions attaching thereto; or | |
(c) |
|
Mylan reserves the right to waive in whole or in part the pre-condition set out above.
CONDITIONS TO AND CERTAIN FURTHER TERMS OF THE OFFER
The Offer to be made by Mylan will comply with the Irish Takeover Rules and applicable US tender offer rules and will be subject to the terms and conditions set out in this announcement and to be set out in the Offer Document and the Acceptance Documents. The Offer will be governed by the laws of
The Offer will be subject to the following conditions:
Acceptance Condition
(a) |
valid acceptances being received (and not validly withdrawn) by not later than | ||
For the purposes of the conditions in Appendix I: | |||
(i) |
Perrigo Shares which have been unconditionally allotted shall be deemed to carry the voting rights they will carry upon issue; and | ||
(ii) |
the expression "Perrigo Shares Affected" shall mean: | ||
(A) |
Perrigo Shares which have been issued or unconditionally allotted on, or before, the date the Offer is made, but excluding any such Perrigo Shares which are cancelled after the date on which the Offer is made or which are held, or become held, as treasury shares; and | ||
(B) |
Perrigo Shares which have been issued or unconditionally allotted after the date on which the Offer is made but before the time at which the Offer closes, or such earlier date as Mylan may, subject to the Irish Takeover Rules, decide (not being earlier than the date on which the Offer becomes unconditional as to acceptances or, if later, the Initial Closing Date), but excluding any such Perrigo Shares which are cancelled after the date on which the Offer is made or which are held, or become held, as treasury shares; and | ||
(C) |
Perrigo Shares which have been re-issued from treasury after the date on which the Offer is made but before the time at which the Offer closes, or such earlier date as Mylan may, subject to the Irish Takeover Rules, decide (not being earlier than the date on which the Offer becomes unconditional as to acceptances or, if later, the Initial Closing Date), | ||
other than Perrigo Shares in the beneficial ownership of Mylan on the date the Offer is made; | |||
(iii) |
the expression "Maximum Perrigo Shares Affected" shall mean, at a relevant date of determination, the aggregate of: | ||
(A) |
the total number of Perrigo Shares Affected; and | ||
(B) |
the maximum number (or such lesser number as Mylan may decide) of Perrigo Shares which are required, or may be required, to be allotted and/or issued and/or re-issued from treasury pursuant to the exercise of outstanding subscription, conversion or other rights (including rights granted under the Perrigo Share Plans), disregarding the terms on which any such rights may be exercised (including any restrictions thereon), and irrespective of whether such rights have been granted on, before, or after, the date on which the Offer is made. |
Receipt of Mylan Shareholder Approval
(b) |
Mylan having received the affirmative vote of the requisite majority of the votes cast at a general meeting of its shareholders at which the requisite part of the issued share capital is present or represented in respect of the resolutions of the general meeting required by article 2:107a of the Dutch Civil Code and Nasdaq Rule 5636 in connection with the consummation of the Offer and such other resolutions as may be instrumental for the implementation of the Offer; |
Effective Registration Statement
(c) |
The registration statement that Mylan intends to file with the |
Nasdaq Listing
(d) |
Nasdaq having authorised, and not withdrawn such authorisation, for listing all of the Mylan Shares to be delivered to Perrigo Shareholders pursuant to the Offer subject to satisfaction of any conditions to which such approval is expressed to be subject; |
Share Buyback, Reduction, Redemption, Dividends etc
(e) |
no member of the |
(f) |
no member of the |
Acquisitions, Disposals, Joint Ventures, Mergers and Similar Transactions
(g) |
save for transactions between two or more members of the |
Frustrating Actions (within the meaning of Rule 21 of the Irish Takeover Rules)
(h) |
no passing of any resolution at a shareholder meeting of Perrigo to approve any action, possible action, contract, sale, disposal, or acquisition for the purposes of Rules 21(a)(i) or (iii) of the Irish Takeover Rules; |
(i) |
no member of the |
European Merger Regulation
(j) |
to the extent that the Offer or its implementation would give rise to a concentration with a Community dimension within the scope of Council Regulation (EC) No. 139/2004 (the "Regulation") or otherwise would give rise to a concentration that is subject to the Regulation, the |
Irish Competition Act
(k) |
to the extent that Part 3 of the Competition Act 2002 (as amended) (the "Competition Act") is applicable to the Offer or its implementation, one of the following events having occurred: | |
(i) |
the Competition and | |
(ii) |
the period specified in Section 21(2) of the Competition Act having elapsed without the CCPC having informed Mylan of the determination (if any) which it has made under Section 21(2) of the Competition Act; or | |
(iii) |
the CCPC, in accordance with Section 22(4) of the Competition Act, having furnished to Mylan a copy of its determination (if any), in accordance with Section 22(3)(a) of the Competition Act, that the Offer may be put into effect; or | |
(iv) |
the CCPC, in accordance with Section 22(4) of the Competition Act, having furnished to Mylan a copy of its determination (if any), in accordance with Section 22(3)(c) of the Competition Act, that the Offer may be put into effect subject to conditions specified by the CCPC being complied with, and such conditions being acceptable to Mylan; or | |
(v) |
the period of 120 working days after the appropriate date (as defined in Section 19(6) of the Competition Act) having elapsed, or, where a requirement is made under Section 20(2) of the Competition Act, the period of 120 working days and any period of suspension that applies pursuant to Section 22(4A) of the Competition Act after the appropriate date (as defined in Section 19(6)) of the Competition Act) having elapsed, without the CCPC having made a determination under Section 22(3) of the Competition Act in relation to the Offer, in each case prior to the latest time the Offer may become or be declared unconditional as to acceptances in accordance with the Irish Takeover Rules; |
US Hart-Scott-Rodino Clearance
(l) |
if the HSR Pre-Condition has been waived by Mylan or the HSR Pre-Condition has been satisfied pursuant to paragraph (c) of the HSR Pre-Condition, to the extent applicable to the Offer or its implementation, all notifications and filings, where necessary, having been made and all applicable waiting periods (including any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, of |
General Regulatory and Antitrust/Competition
(m) |
no central bank, government or governmental, quasi-governmental, supranational, statutory, regulatory, administrative, investigative or fiscal body, court, agency, association, institution, department or bureau including any anti-trust or merger control authorities, regulatory body, court, tribunal, environmental body, employee representative body, any analogous body whatsoever or tribunal in any jurisdiction or any person including, without limitation, a member of the | |
(i) |
make the Offer or its implementation, or the acquisition or the proposed acquisition by Mylan of the Perrigo Shares Affected, or control of Perrigo or any of the assets of the | |
(ii) |
result in a material delay in the ability of Mylan, or render Mylan unable, to acquire some or all of the Perrigo Shares Affected or require a divestiture by Mylan of any Perrigo Shares; | |
(iii) |
require the divestiture by any member of the | |
(iv) |
impose any limitation on or result in a delay in the ability of Mylan to acquire, or to hold or to exercise effectively, directly or indirectly, all or any rights of ownership of the Perrigo Shares Affected, or to exercise voting or management control over Perrigo or any subsidiary or subsidiary undertaking of Perrigo which is material in the context of the | |
(v) |
require Mylan or any member of the | |
(vi) |
impose any limitation on the ability of Mylan to integrate or co-ordinate its business or assets, or any part of it, with all or any part of the businesses of any member of the | |
(vii) |
cause any member of the | |
(viii) |
otherwise adversely affect the business, profits, assets, liabilities, financial or trading position of any member of the | |
provided that this condition (m) does not apply to any matter which is referred to in condition (l) above; |
Notifications, waiting periods and Authorisations
(n) |
all necessary or appropriate notifications and filings having been made and all necessary or appropriate waiting and other time periods (including any extensions thereof) under any applicable legislation or regulation of any jurisdiction having expired, lapsed or having been terminated (as appropriate) and all statutory or regulatory obligations in any jurisdiction having being complied with in each case in connection with the Offer or its implementation and all necessary, desirable or appropriate regulatory approvals, authorisations, orders, recognitions, grants, consents, clearances, confirmations, licences, permissions and approvals in any jurisdiction ("Authorisations") having been obtained on terms and in a form reasonably satisfactory to Mylan from all appropriate Third Parties or (without prejudice to the generality of the foregoing)
from any person or bodies with whom any member of the |
(o) |
all applicable waiting periods and any other time periods (including any extension thereof) during which any Third Party could, in respect of the Offer or the acquisition or proposed acquisition of any Perrigo Shares Affected by Mylan, institute, implement or threaten any action, proceedings, suit, investigation, enquiry or reference or take any other step under the laws of any jurisdiction having expired, lapsed or been terminated, provided that this condition (o) does not apply to any matter which is referred to in condition (l) above; |
Certain matters arising as a result of any arrangement, agreement etc
(p) |
save as publicly announced by Perrigo prior to the date of this announcement, there being no provision of any arrangement, agreement, licence, permit, franchise, facility, lease or other instrument to which any member of the | |
(i) |
any monies borrowed by, or any indebtedness or liability (actual or contingent) of, or any grant available to any member of the | |
(ii) |
the creation or enforcement of any mortgage, charge or other security interest wherever existing or having arisen over the whole or any part of the business, property or assets of any member of the | |
(iii) |
any such arrangement, agreement, licence, permit, franchise, facility, lease or other instrument or the rights, liabilities, obligations or interests of any member of the | |
(iv) |
any assets or interests of, or any asset the use of which is enjoyed by, any member of the | |
(v) |
the value of, or financial or trading position of, any member of the | |
(vi) |
the creation or acceleration of any liability or liabilities (actual or contingent) by any member of the | |
(vii) |
any liability of any member of the |
Certain Events occurring since
(q) |
save as publicly announced by Perrigo prior to the date of this announcement, no member of the | |
(i) |
issued or agreed to issue, or authorized or proposed the issue of, additional shares of any class, or securities convertible into or exchangeable for, or rights, warrants or options to subscribe for or acquire, any such shares or convertible or exchangeable securities or issued or transferred, or agreed, authorized or proposed the re-issue of, any shares from treasury; | |
(ii) |
save for transactions between two or more members of the | |
(iii) |
except in the ordinary and usual course of business, entered into or materially improved, or made any offer (which remains open for acceptance) to enter into or materially improve, the terms of any employment contract, commitment or arrangement with any director of Perrigo or any person occupying one of the senior executive positions in the | |
(iv) |
issued, authorised or proposed to make, or made, any change or amendment to any loan capital or debentures or (save in the ordinary course of business and save for transactions between two or more members of the | |
(v) |
entered into or varied or authorised, proposed or announced its intention to enter into or vary the terms of any contract, transaction, arrangement or commitment (whether in respect of capital expenditure or otherwise) which is of a long term, onerous or unusual nature or magnitude or which is or could be materially restrictive on the business of any member of the | |
(vi) |
entered into or varied or authorised, proposed or announced its intention to enter into or vary the terms of any contract, transaction or arrangement otherwise than in the ordinary and usual course of business; | |
(vii) |
waived or compromised any claim which would be material (in value terms or otherwise) in the context of the | |
(viii) |
been unable, or admitted in writing that it is unable, to pay its debts or stopped or suspended (or threatened to stop or suspend) payment of its debts generally or ceased to carry on all or a substantial part of any business; | |
(ix) |
taken or proposed any steps, any corporate action or had any legal proceedings instituted or threatened against it in respect of its winding-up, dissolution, examination or reorganisation or for the appointment of a receiver, examiner, administrator, administrative receiver, trustee or similar officer of all or any part of its assets or revenues, or any analogous proceedings in any jurisdiction; | |
(x) |
proposed, agreed to provide or modified the terms of any share option scheme, incentive scheme or other benefit relating to the employment or termination of employment of any employee of the | |
(xi) |
made any alteration to its memorandum or articles of association or other incorporation documents; | |
(xii) |
made or agreed or consented to any significant change to the terms of the trust deeds constituting the pension schemes established for its directors and/or employees and/or their dependants or to the benefits which accrue, or to the pensions which are payable thereunder, or to the basis on which qualification therefore or accrual or entitlement to such benefits or pensions are calculated or determined, or made or agreed or consented to any change to the trustees involving the appointment of a trust corporation; or | |
(xiii) |
entered into any agreement, contract, scheme, arrangement or commitment or passed any resolution or made any offer with respect to, or announced an intention to, or to propose to effect any of the transactions, matters or events set out in this condition; |
No adverse change, litigation, regulatory enquiry or similar
(r) |
since | |
(i) |
there not having arisen any adverse change or deterioration, or circumstances which could result in any adverse change or deterioration, in the business, assets, financial or trading position or profits of Perrigo or any member of the | |
(ii) |
no litigation, arbitration proceedings, prosecution or other legal proceedings to which any member of the | |
(iii) |
no steps having been taken which are likely to result in the withdrawal, cancellation, termination or modification of any licence, consent, permit or authorisation held by any member of the | |
(iv) |
no contingent or other liability existing or having arisen or being apparent to Mylan which would reasonably be expected to affect adversely any member of the |
No discovery of certain matters regarding information, liabilities and environmental matters
(s) |
Mylan not having discovered that any financial, business or other publicly disclosed information concerning the | |
(t) |
Mylan not having discovered that any member of the | |
(u) |
save as publicly announced by Perrigo prior to the date of this announcement, since | |
(i) |
in relation to any release, storage, carriage, leak, emission, discharge or disposal of any waste or hazardous substance or any other substance reasonably likely to impact the environment or any other fact or circumstance which has caused or would reasonably be expected to impair the environment or harm human health, that any past or present member of the | |
(ii) |
that there is, or would reasonably be expected to be, any liability, whether actual or contingent, or requirement to make good, remediate, repair, reinstate or clean up any property or asset now or previously owned, occupied or made use of by any past or present member of the | |
(iii) |
that circumstances exist (whether as a result of the making of the Offer or otherwise) which would reasonably be expected to result in any actual or contingent liability (as a result of an environmental audit or otherwise) to any member of the |
Directive 2003/71/EC
(v) |
to the extent required, compliance with the applicable requirements of Directive 2003/71/EC of the European Parliament and of the Council as amended (the Prospectus Directive), and the rules and regulations promulgated thereunder, all as implemented in the relevant member state(s); and |
Securities Law of the
(w) |
to the extent required, compliance with the applicable requirements of the Securities Law, 5728-1968, of the |
For the purposes of this Appendix I:
"Competition Act" means the Competition and Consumer Protection Act 2014 of
"Competition and
"
"Initial Closing Date" means
"initial Offer period" means the period from the date of the dispatch of the Offer Document to Perrigo Shareholders, to and including the Initial Closing Date;
"subsidiary" and "holding company" have the meaning given by Section 155 of the Companies Act 1963 of Ireland;
"subsidiary undertaking" and "undertaking" have the meanings given by the European Communities (Companies: Group Accounts) Regulations 1992 of
"
Additional terms defined in Appendix III shall have the same meaning where used in this Appendix I.
The Offer will lapse unless all of the conditions set out above in this Appendix I have been fulfilled or (if capable of waiver) waived or, where appropriate, have been determined by Mylan to be or to remain satisfied by
Unless Mylan otherwise determines, condition (a) shall be capable of being satisfied, or being treated as satisfied, only at the time when all of the other conditions (b) to (w) inclusive, shall have been satisfied, fulfilled or, to the extent permitted, waived. Mylan reserves the right to waive in whole or in part all or any of conditions (b) to (w) (excluding conditions (j) to (l) to the extent applicable to the Offer or its implementation). Mylan shall not be obliged to waive (if capable of waiver) or treat as satisfied any condition by a date earlier than the latest time and date for the fulfilment of all conditions referred to in the previous paragraph, notwithstanding that any other condition of the Offer may at such earlier date have been waived or fulfilled or that there are at such earlier dates no circumstances indicating that the relevant condition may not be capable of fulfilment.
To the extent that the Offer or its implementation would give rise to a concentration with a Community dimension within the scope of the Regulation or would otherwise give rise to a concentration that is subject to the Regulation, the Offer shall lapse if the
In the event that the Offer lapses in any circumstances, the Offer will cease to be capable of further acceptance and Mylan and accepting Perrigo Shareholders will thereupon cease to be bound by prior acceptances.
If Mylan is required to make an offer for Perrigo Shares under the provisions of Rule 9 of the Irish Takeover Rules, Mylan may make such alterations to any of the above conditions as are necessary to comply with the provisions of that rule.
Mylan reserves the right, with the consent of the
(i) |
approval at a court meeting or any separate class meeting, if applicable, which may be required by the court (or any adjournment thereof) by a majority in number of the holders of Perrigo Shares present and voting, either in person or by proxy, representing 75% or more in value of the Perrigo Shares held by such holders; |
(ii) |
the resolutions required to approve and implement the scheme of arrangement and any related reduction of capital and amendments to |
(iii) |
the sanction of the scheme of arrangement and confirmation of any reduction of capital involved therein by the court (in both cases with or without modifications, on terms reasonably acceptable to Mylan); and |
(iv) |
office copies of the orders of the court sanctioning the scheme of arrangement and confirming the reduction of capital involved therein and the minute required by Section 75 of the Companies Act 1963 of |
APPENDIX II
BASES OF CALCULATION AND SOURCES OF INFORMATION
In this announcement, unless otherwise stated or the context otherwise requires, the following bases and sources have been used:
(i) |
save where otherwise stated, financial and other information concerning Perrigo and Mylan has been extracted from published sources; | |
(ii)
|
the information regarding pro forma 2014 revenues for Mylan and Perrigo combined is extracted from: (i) for information relating to Mylan, Mylan's Amended Current Report (Form 8-K/A) filed with the | |
(iii)
|
the information set forth under "Information About Mylan" is extracted from | |
(iv)
|
the information set forth under "Information About Perrigo" is extracted from | |
(v)
|
that statement about Mylan's annualized three year total shareholder return is sourced from Bloomberg and is as of | |
(vi)
|
The bases of belief (including sources of information and assumptions made) that support the Synergy Statement are set forth in the following paragraphs. The Synergy Statement has been reported on in accordance with Rule 19.3(b) of the Irish Takeover Rules. | |
Expected sources of the anticipated annual pre-tax operational synergies include the benefits of savings associated with integration and optimization across cost components and functions, including the following: | ||
o |
Optimizing global back-office, manufacturing, selling and distribution infrastructure; | |
o |
Cost efficiencies and operating leverage resulting from increased scale; | |
o |
Research and development savings from elimination of overlapping costs; and | |
o |
Elimination of redundant public company costs. | |
When evaluating the potential annual pre-tax operational synergies, Mylan assumed the following: | ||
o |
That the Offer will be consummated and, following the consummation of the Offer, Mylan will acquire compulsorily any Perrigo Shares not acquired or agreed to be acquired pursuant to the Offer or otherwise; | |
o |
That there will be no material impact on Mylan arising from any decisions made by competition authorities; | |
o |
That there will be no material change to the market dynamics affecting Mylan and/or Perrigo following the consummation of the Offer or the compulsory acquisition by Mylan of any Perrigo Shares not acquired or agreed to be acquired pursuant to the Offer or otherwise; and | |
o |
That there will be no material change to exchange rates following the consummation of the Offer or the compulsory acquisition by Mylan of any Perrigo Shares not acquired or agreed to be acquired pursuant to the Offer or otherwise. | |
In establishing the estimate of potential annual pre-tax operational synergies, Mylan assumed that | ||
o |
| |
o |
Perrigo presentations; | |
o |
| |
o |
Analyst research; | |
o |
Other public information; | |
o |
Mylan's knowledge of the industry and of Perrigo; and | |
o |
Mylan's experience with respect to synergies in connection with previous transactions. | |
There remains an inherent risk in relying on the Synergy Statement. The Synergy Statement should not be construed as a profit forecast or interpreted to mean that Mylan earnings in any period subsequent to the consummation of the Offer would necessarily match or be greater than or be less than those of Mylan and/or Perrigo for the relevant preceding financial period or any other period. |
APPENDIX III
DEFINITIONS
The following definitions apply throughout this announcement (including in the appendices) unless the context otherwise requires:
"2.4 Announcement" |
has the meaning given to that term in section 1 of this announcement; |
"Acceptance Documents" |
the Form of Acceptance, the Letter of Transmittal and any other acceptance documents relating to the Offer which will accompany the Offer Document; |
"API" |
has the meaning given to that term in section 4 of this announcement; |
"Cash Consideration" |
has the meaning given to that term in section 2 of this announcement; |
"Perrigo Board" |
the board of directors of Perrigo; |
"business day" |
any day (other than Saturday or Sunday) on which lending banks in |
"Day 60" |
has the meaning given to that term in section 12 of this announcement; |
"Due Diligence Pre-Condition" |
has the meaning given to that term in section 1 of this announcement; |
"EEA" |
the European Economic Area, which was established on |
"Encumbrance" |
any adverse claim or right or third party right or other right or interest, equity, option or right to acquire or right to restrict, any mortgage, charge, assignment, pledge, lien or security interest or repurchase agreement or similar arrangement; |
"Form of Acceptance" |
the form of acceptance and/or other acceptance documents relating to the Offer which will accompany the Offer Document, for use by Perrigo Shareholders; |
"Goldman Sachs" |
Goldman, Sachs & Co. and Goldman Sachs International (in their capacity as financial advisor); |
" |
Goldman Sachs Bank |
"HSR Act" |
has the meaning given to that term in section 2 of this announcement; |
"HSR Pre-Condition" |
has the meaning given to that term in section 2 of this announcement; |
" |
the |
"Irish Takeover Panel Act" |
the Irish Takeover Panel Act 1997 of |
"Irish Takeover Rules" |
the Irish Takeover Panel Act 1997, Takeover Rules 2013; |
"Letter of Transmittal" |
the letter of transmittal relating to the Offer which will accompany the Offer Document, for use by Perrigo Shareholders; |
"Mylan" |
|
"Mylan Shares" |
has the meaning given to that term in section 4 of this announcement; |
"NASDAQ" |
the NASDAQ Global Select Market; |
" |
the |
"Offer" |
the offer to be made by Mylan to acquire the entire issued and to be issued share capital of Perrigo (on the terms, and subject to the conditions, to be set out in the Offer Document and the Acceptance Documents) including where the context so requires, any subsequent revision, variation, extension or renewal of such offer; |
"Offer Document" |
the document to be sent to Perrigo Shareholders, and for information only to Perrigo Equity Award Holders, containing the terms and conditions of the Offer; |
"Offer Period" |
the period commencing on, and including, |
"Offer Price" |
has the meaning given to that term in section 2 of this announcement; |
"OTC" |
has the meaning given to that term in section 5 of this announcement; |
"Perrigo" |
|
"Perrigo Annual Report and Accounts" |
|
" |
Perrigo and its subsidiaries and subsidiary undertakings and "member of the |
"Perrigo Equity Award Holders" |
has the meaning given to that term in section 7 of this announcement; |
"Perrigo Shares" |
the ordinary shares of €0.001 each (nominal value) in the capital of Perrigo; |
"Perrigo Shareholders" |
the holders of Perrigo Shares; |
"Perrigo Share Plans" |
the |
"Proposal" |
has the meaning given to that term in section 1 of this announcement; |
"Registration Statement" |
has the meaning given to that term in section 2 of this announcement; |
" |
the |
"Share Consideration" |
has the meaning given to that term in section 2 of this announcement; |
"Synergy Statement" |
means the following statement: "Mylan expects the combination will result in at least |
"TASE" |
the |
" |
|
"US Exchange Act" |
the US Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder; |
"US Securities Act" |
the US Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder; and |
"US$", "dollars", "US Dollars" or "$" |
US dollars, the lawful currency of |
All references to time in this document are to Irish time unless otherwise stated.
Words importing the singular shall include the plural and vice versa, and words importing the masculine gender shall include the feminine or neutral gender.
References to "subsidiary undertaking" or "undertaking" have the meanings given to those terms in the European Communities (Companies: Group Accounts) Regulations 1992 of
References to "subsidiary" or "holding company" have the meanings given to those terms by Section 155 of the Companies Act 1963 of
References to any provision of any legislation shall include any amendment, modification, re-enactment or extension thereof. Any reference to any legislation is to Irish legislation unless specified otherwise.
APPENDIX IV
Report of the Irish firm of
The Directors
Albany Gate
Potters Bar
Goldman Sachs International
Mylan N.V: Proposed Acquisition of
We report on the potential operational synergies statement (the "Synergy Statement") by the directors of
"Mylan expects the combination to result in at least
The Synergy Statement has been made in the context of disclosure in Appendix II of the Announcement setting out the basis of the belief of the Directors of the Company (the "Directors") supporting the Synergy Statement and their analysis and explanation of the underlying constituent elements.
This report is required by Rule 19.3(b)(ii) of the Irish Takeover Panel Act 1997, Takeover Rules, 2013 (the "Rules") and is given for the purpose of complying with that rule and for no other purpose.
Responsibilities
It is the responsibility of the Directors of the Company to make the Synergy Statement in accordance with the Rules.
It is our responsibility and that of the Financial Adviser to form our respective opinions as required by Rule 19.3(b)(ii) of the Rules, as to whether the Synergy Statement has been made by the Directors with due care and consideration.
Save for any responsibility which we may have to those persons to whom this report is expressly addressed and for any responsibility arising under Rule 19.3(b)(ii) of the Rules to any person as and to the extent therein provided, to the fullest extent permitted by law we do not assume any responsibility and will not accept any liability to any other person for any loss suffered by any such other person as a result of, arising out of, or in connection with this report or our statement, required by and given solely for the purposes of complying with Rule 19.3(b)(ii) of the Rules, consenting to its inclusion in the Announcement.
Basis of Opinion
We conducted our work in accordance with the Standards for Investment Reporting issued by the Auditing Practices Board in the
Since the Synergy Statement and the assumptions on which it is based relate to the future and may therefore be affected by unforeseen events, we can express no opinion as to whether the actual benefits achieved will correspond to those anticipated in the Synergy Statement and the differences may be material.
Our work has not been carried out in accordance with auditing or other standards and practices generally accepted in
Opinion
In our opinion, on the basis of the foregoing, the Directors have made the Synergy Statement, in the form and context in which it is made, with due care and consideration.
Yours sincerely
/s/
APPENDIX V
Report of Goldman Sachs International pursuant to Rule 19.3(b)(ii) of the Irish Takeover Rules
The Directors
Albany Gate
Potters Bar
Dear Sirs,
Proposed Offer by Mylan N. V. ("Mylan") for
We refer to the statements of estimated operational synergies, the bases of preparation thereof and the notes thereto (together the "Statements") made by Mylan set out in this announcement dated
We have discussed the Statements (including the assumptions and sources of information referred to therein) with the Directors of Mylan and those officers and employees of Mylan who have developed the underlying plans.
The Statements are subject to uncertainty as described in this document and our work did not involve any independent examination of any of the financial or other information underlying the Statements.
We have relied upon the accuracy and completeness of all the financial and other information reviewed by us and have assumed such accuracy and completeness for the purposes of rendering this letter. In giving the confirmation set out in this letter, we have reviewed the work carried out by
We do not express any opinion as to the achievability of the estimated operational synergies identified by the Directors of Mylan.
This letter is provided pursuant to our engagement letter with Mylan solely to the Directors of Mylan in connection with Rule 19.3(b)(ii) of the Irish Takeover Panel Act, 1997, Takeover Rules 2013, and for no other purpose. We accept no responsibility to Perrigo or its shareholders or any other person, other than the Directors of Mylan, in respect of the contents of, or any matter arising out of or in connection with, this letter or the work undertaken in connection with this letter.
On the basis of the foregoing, we consider that the Statements by Mylan, for which the Directors of Mylan are solely responsible, have been made with due care and consideration in the context in which they were made.
Yours faithfully,
Managing Director
For and on behalf of
Goldman Sachs International
To view the original version on PR Newswire, visit:http://www.prnewswire.com/news-releases/mylan-to-commence-formal-offer-to-acquire-perrigo-for-us60-in-cash-and-22-mylan-shares-per-perrigo-share-300071765.html
SOURCE
News Provided by Acquire Media