Irish Takeover Panel Announcement
Perrigo Company plc (“Perrigo”)
Mylan N.V. (“Mylan”)
- Perrigo recently made an application to the Irish Takeover Panel (“Panel”) requesting the Panel to declare Mylan’s offer of 14 September 2015 lapsed, on the basis that Mylan allegedly failed to make a valid offer to shareholders of Perrigo in Israel by 14 September 2015 in accordance with the requirements of Israeli Securities Law, that Mylan had thereby breached a ruling of the Panel dated 24 April 2015 and that Mylan had acted in breach of a number of the Rules and General Principles (as summarised at paragraph 6 below).
- Having considered submissions from both Perrigo and Mylan on the application, the Panel has ruled that Mylan’s offer remains lawful and valid and fully capable of acceptance by all Perrigo shareholders including Israeli shareholders as a matter of Irish law and has accordingly rejected Perrigo’s application.
- Perrigo is an Irish registered company whose securities are listed on the New York Stock Exchange as a consequence of which the current offer by Mylan for Perrigo falls within the jurisdiction of the Panel. Perrigo’s securities are also listed on the Tel Aviv Stock Exchange.
- In a ruling dated 24 April 2015 the Panel granted consent to permit Mylan to issue a pre-conditional announcement of a firm intention to make an offer under Rule 2.5 of the Irish Takeover Panel Act 1997, Takeover Rules, 2013 (“Rules”) subject inter alia to the offer document being posted no later than 14 September 2015.
- On 14 September 2015 Mylan despatched its offer document to Perrigo shareholders.
- Commencing on 17 September 2015 Perrigo made a number of submissions to the Panel alleging that Mylan failed to make a lawful offer by 14 September 2015 and that this breaches the Panel ruling of 24 April 2015, Rules 2.5(a), 23(a) and 24 of the Rules and General Principles 1, 2 and 4 in the schedule to the Irish Takeover Panel Act 1997, as amended (“Act”).
- On 24 September 2015, Perrigo issued proceedings in Israel seeking declaratory and injunctive relief on the basis that it alleged that Mylan had failed to publish a lawful tender offer on 14 September under Israeli Securities Law. The motion for a Temporary Restraining Order, filed with the Economic Court in Tel Aviv, requested the court to grant the following reliefs:
(i) A declaration that Mylan did not publish a lawful tender offer on 14 September 2015 in Israel in accordance with the Securities Law 1968 and the Securities Regulations (Purchase Offer) 2000;
(ii) An order prohibiting Mylan from taking any actions in Israel in connection with the tender offer; and
(iii) An order instructing the Israel Securities Authority to prohibit any action in connection with the tender offer in Israel.
Rulings of the Panel
- The Panel decided, having regard to the definition of “offer” in the Act and to the meaning of “offer” under the Rules, that as a matter of statutory interpretation, it is not a requirement of either the Act or the Rules that an “offer” to be a lawful and valid offer under the Act or the Rules must be lawfully and validly made in accordance with the laws of every jurisdiction in which an offeree shareholder might reside.
- In this case the takeover offer under the supervision of the Panel is one made in respect of an Irish company under the Rules and where the offer document itself specifies that “… The offer will be governed by the laws of Ireland and the US and will be subject to the jurisdiction of the courts of Ireland and the US.”
- While the question as to whether or not Israeli law requirements as regards an offer to Israeli shareholders were in fact met is contested between the parties with each side tendering Israeli legal opinion on the issues arising, the Panel decided that it did not need to determine that dispute for the purposes of deciding whether the requirements of its letter of 24 April 2015 were met and for the purpose of deciding whether there were breaches of the General Principles and the Rules as alleged.
- The Panel has therefore ruled that Mylan’s offer, the terms and conditions of which are set out in its offer document dated 14 September 2015, remains lawful and valid and fully capable of acceptance by all shareholders including Israeli shareholders as a matter of Irish law. Consequently, the Panel decided to reject Perrigo’s application.
- The Panel ruled that there had been no breaches of the Rules and General Principles referred to in paragraph 6 above and that there had been proper compliance by Mylan with the Panel ruling of 24 April 2015.
13 October 2015