- Requests from Shareholders Owning 31% of Company’s Shares
Exceeds the Required 25%
- Additional Requests Still Being Finalized
- Pershing Square and Valeant Seek Declaratory Relief in Delaware
Court of Chancery to Schedule the Meeting
NEW YORK -- (Business Wire)
Pershing Square Capital Management, L.P. (“Pershing Square”), the
largest shareholder of Allergan, Inc. (NYSE:AGN) (“Allergan”), announced
today that it submitted the required documentation to compel Allergan to
call a special meeting of Allergan shareholders. The written requests,
from shareholders owning 31% of Allergan’s shares, exceed the
requirements under Allergan’s certificate of incorporation and bylaws to
call a special meeting. A substantial majority of the consents were
delivered by shareholders who were holders of Allergan prior to the
announcement of the proposal by Valeant Pharmaceuticals International,
Inc. (NYSE:VRX) (“Valeant”) and Pershing Square, and includes some of
the longest-standing and largest shareholders of the company.
The delivery of the consents starts the clock on the calling of the
Special Meeting under the bylaws. Under its own interpretation of its
bylaws, Allergan is now required to call the meeting no later than
December 20, 2014. Today, Pershing Square and Valeant filed litigation
in Delaware seeking declaratory relief to require Allergan to schedule
the meeting.
Over the next few weeks, Pershing Square expects to deliver additional
requests from shareholders who are in the process of completing the
required documentation.
Under the terms of the bylaws, Allergan shareholders have the
opportunity to add to and update their consents with additional shares
acquired through September 14, 2014. In addition, existing and new
shareholders who have not previously submitted requests may submit
requests for the meeting prior to that date. Pershing Square encourages
shareholders to contact Ed McCarthy at D.F. King at 212-269-5550 for
assistance.
Pershing Square CEO Bill Ackman, commented: “The degree of support
received is remarkable in light of the extraordinarily burdensome
requirements that shareholders have had to meet to deliver their
consents. No special meeting has ever been called with shareholders
being required to comply with such onerous procedural and informational
requirements. Unfortunately, we were not able to accommodate all
shareholders who wished to support the calling of the meeting as many
were unable to comply with the requirements.”
Mike Pearson, Chairman and CEO, of Valeant Pharmaceuticals said: “We
remain firmly committed to pursuing a merger of Valeant and Allergan and
are greatly appreciative of the shareholder support received to call the
meeting. We look forward to the opportunity to negotiate a transaction
which is in the best interest of both companies.”
At the special meeting, Allergan shareholders will have the opportunity
to voice their support for a number of critical matters, including the
removal of six incumbent members of the Allergan board, the appointment
of an independent slate of directors, amendments to Allergan’s bylaws to
eliminate onerous restrictions on the calling of a special meeting, a
request that Allergan engage in negotiations with Valeant and Pershing
Square, and certain other actions to improve corporate governance of
Allergan. Pershing Square’s call to hold a special meeting was strongly
supported by the leading proxy advisory firms Institutional Shareholder
Services Inc. and Glass, Lewis & Co.
A letter from Bill Ackman to Matthew J. Maletta, Associate General
Counsel and Secretary of Allergan, accompanied the submission and reads
as follows:
August 22, 2014
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Allergan, Inc.
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2525 Dupont Drive
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Irvine, CA 92612
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Attention: Matthew J. Maletta
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Associate General Counsel and Secretary
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Re: Request to Call Special Meeting
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Dear Mr. Maletta:
In accordance with Article 10 of Allergan, Inc.’s (the “Company”)
Amended and Restated Certificate of Incorporation (the “Charter”) and
Article II, Section 3 of the Company’s Amended and Restated Bylaws (the
“Bylaws”), we hereby request, on behalf of ourselves and other
shareholders who have authorized us to submit requests on their behalf,
that you convene a special meeting (the “Special Meeting”) of Allergan’s
shareholders for the purposes of considering and voting upon the
proposals set forth in full under the heading “Plans for the Special
Meeting” in the solicitation statement filed by PS Fund 1, LLC (“PS Fund
1”) with the U.S. Securities and Exchange Commission on July 11, 2014.
Attached hereto are requests from PS Fund 1 and other shareholders who
own in aggregate 31% of the outstanding common stock of the Company
(based on 297,183,809 shares of Company common stock outstanding as of
July 31, 2014 as reported by the Company on Form 10-Q filed with the
Securities and Exchange Commission on August 5, 2014). These requests
represent Net Long Beneficial Ownership (as defined in the Bylaws) of
92,121,823 shares of Company common stock and comprise far more than the
Requisite Percentage (as defined in the Bylaws) necessary to call the
Special Meeting. We intend to, and reserve the right to, submit
additional requests within the remaining consent period.
As you will see in the attached documents, shareholders who are
requesting the calling of a Special Meeting include some of the most
well-respected institutional investors in the world, many of whom have
been investors in the Company for many years. A substantial majority of
the shares represented in the requests (including Pershing Square’s) are
being submitted by investors who held shares before the announcement of
the proposal by Valeant and Pershing Square.
The 35 institutions who have submitted these requests have gone to great
lengths and spent a substantial amount of time, effort, and money to
comply with the very onerous procedural and informational requirements
set forth in the Bylaws. As an example of how burdensome these
requirements are, we note that the attached special meeting requests,
together with supporting materials, comprise 1542 pages of documentation
(indeed, the longest set of request materials from a single holder is
174 pages long and includes no less than 85 unique signatures). Given
the amount of work involved in preparing these requests, it is
remarkable that so many of the Company’s shareholders have participated
in the calling of the Special Meeting.
The intensity of support for calling a Special Meeting reflected in
these materials suggests far broader support in the Company’s
shareholder base in light of the large number of shareholders who found
the documentation and procedural requirements unduly burdensome and
could not comply. These requests are submitted without prejudice to the
position of PS Fund 1 that the Bylaws illegally, unreasonably and
inequitably infringe upon the right of the shareholders to require a
special meeting be held in accordance with the Charter.
PS Fund 1 and the other shareholders calling for a Special Meeting have
fully complied with the requirements in the Charter for calling a
special meeting and have also fully complied with the requirements set
forth in the Bylaws as they may reasonably be interpreted and validly
applied under these circumstances. Accordingly, we request that the
Company recognize that these special meeting requests comply with the
Charter and Bylaws and call and hold the Special Meeting without delay.
Sincerely,
PS FUND 1, LLC
By: Pershing Square Capital Management, L.P. its Investment Manager
By: PS Management GP, LLC its General Partner
By: /s/ William A. Ackman
William A. Ackman, Managing Member
For more information, please visit www.AdvancingAllergan.com
ABOUT PERSHING SQUARE
Pershing Square, based in New York City, is a (“SEC”)-registered
investment advisor to private investment funds. A fund managed by
Pershing Square is Allergan’s largest shareholder owning approximately
9.7% of shares outstanding .
ADDITIONAL INFORMATION
This communication does not constitute an offer to buy or solicitation
of an offer to sell any securities. This communication relates to
Pershing Square’s solicitation of written requests to call a special
meeting of shareholders of Allergan, Inc. (“Allergan”) in connection
with the proposal which Valeant Pharmaceuticals International, Inc.
(“Valeant”) has made for a business combination transaction with
Allergan. In furtherance of this proposal and subject to future
developments, Pershing Square has filed a definitive solicitation
statement with the SEC on July 11, 2014 (the “solicitation statement”)
and a preliminary proxy statement on June 23, 2014 with respect to a
special meeting of Allergan shareholders, Valeant has filed a
registration statement on Form S-4 (the “Form S-4”) and a tender offer
statement on Schedule TO (including the offer to exchange, the letter of
election and transmittal and other related offer materials) with the SEC
on June 18, 2014, as it may be amended from time to time (together with
the Form S-4, the “Schedule TO”), and a preliminary proxy statement on
June 24, 2014, as it may be amended from time to time, with respect to a
meeting of Valeant shareholders. Pershing Square and Valeant (and, if a
negotiated transaction is agreed, Allergan) may file one or more
solicitation statements, registration statements, proxy statements,
tender or exchange offer documents or other documents with the SEC. This
communication is not a substitute for the solicitation statement, the
Schedule TO, or any other solicitation statement, proxy statement,
registration statement, prospectus, tender or exchange offer document or
other document Pershing Square, Valeant and/or Allergan may file with
the SEC in connection with the proposed transaction. INVESTORS AND
SECURITY HOLDERS OF VALEANT AND ALLERGAN ARE URGED TO READ THE
SOLICITATION STATEMENT, THE SCHEDULE TO, THE PROXY STATEMENT AND ANY
OTHER SOLICITATION STATEMENT, PROXY STATEMENT, REGISTRATION STATEMENT,
PROSPECTUS, TENDER OR EXCHANGE OFFER DOCUMENTS AND OTHER DOCUMENTS FILED
WITH THE SEC CAREFULLY IN THEIR ENTIRETY IF AND WHEN THEY BECOME
AVAILABLE AS THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED
TRANSACTION. The solicitation statement has been mailed to stockholders
of Allergan. Any definitive solicitation statement or proxy statement(s)
or definitive tender or exchange offer documents (if and when available)
will be mailed to stockholders of Allergan and/or Valeant, as
applicable. Investors and security holders will be able to obtain free
copies of the solicitation statement, the Schedule TO and the proxy
statement and will be able to obtain free copies of other documents (if
and when available) filed with the SEC by Pershing Square and/or Valeant
through the web site maintained by the SEC at http://www.sec.gov.
Information regarding the names and interests in Allergan and Valeant of
Pershing Square and persons related to Pershing Square who may be deemed
participants in any solicitation of Allergan or Valeant shareholders in
respect of a Valeant proposal for a business combination with Allergan
is available in the solicitation statement. The solicitation statement
can be obtained free of charge from the sources indicated.
FORWARD-LOOKING STATEMENTS
This communication contains forward-looking information that was
prepared as of the specific dates and/or for the specific periods
referenced in the materials contained or referred to in this
communication. All information contained in this communication that is
not clearly historical in nature or that necessarily depends on future
or subsequent events is forward-looking information prepared as of the
specific dates and for the specific periods referenced in the applicable
document contained or referred to in this communication, and the words
“anticipate,” “believe,” “expect,” “estimate,” “plan,” and similar
expressions are generally intended to identify forward-looking
information as of such date(s). Such forward-looking information was
based on the expectations of Pershing Square and information available
at the time of initial publication or dissemination of such information.
They were not, and are not, guarantees of future performance, events or
results, involve various risks and uncertainties that are difficult to
predict and are based upon assumptions as to future events, performance
or results that were believed to be reasonable at the time such
information was initially made available but may not prove to be
accurate and, in most cases, have been superseded, modified or replaced
by subsequent information, events or developments. While Pershing Square
may elect to update forward-looking information contained in this
communication at some point in the future, Pershing Square does not
assume any obligation to update any such forward-looking information,
except as required by and in accordance with applicable laws.
Contacts:
MEDIA
Rubenstein
Steve Murray, 212-843-8293
smurray@rubenstein.com
or
Fran
McGill, 212-843-9353
fmcgill@rubenstein.com
Source: Pershing Square Capital Management, L.P.
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