Allergan has asked the United States District Court for the Central District of California to set an expedited schedule for discovery and a motion for a preliminary injunction against Valeant Pharmaceuticals, Pershing Square Capital Management, L.P., and its principal, William A. Ackman, for violations of the federal securities laws. In addition, Allergan announced that it will hold a Special Meeting of Stockholders on December 18, 2014, subject to confirmation by Allergan that the meeting has been validly requested in compliance with Allergan’s bylaws. Allergan has established an October 27, 2014 record date for stockholders entitled to vote at the Special Meeting.
In its preliminary injunction motion, Allergan will seek an order barring Valeant, Pershing Square, Mr. Ackman, and entities affiliated with them from exercising any rights or benefits associated with Allergan shares that have been acquired unlawfully. Such an order would prevent Valeant, Pershing Square, and Mr. Ackman from voting their shares in any special meeting.
Allergan’s proposed schedule would require expedited discovery to be completed in October 2014, and would set a hearing on Allergan’s anticipated preliminary injunction motion in advance of the Company’s Special Meeting. Should Allergan succeed in obtaining a preliminary injunction in its federal lawsuit, Valeant, Pershing Square, and Mr. Ackman’s shares will not be counted toward the special meeting request.
Allergan’s lawsuit, filed August 1, 2014, alleges that Pershing Square, Mr. Ackman, and Valeant violated insider trading laws and failed to provide full and fair disclosure to Allergan’s stockholders. The federal court last week noted “the seriousness of [Allergan’s] federal securities laws claims” and provided the parties with a roadmap for adjudicating those claims on a prompt basis if and when the defendants submitted a sufficient number of stockholder requests for a special meeting.
Allergan’s federal lawsuit alleges that Valeant, Pershing Square and Mr. Ackman, violated Sections 13(d), 14(a), and 14(e) of Securities Exchange Act of 1934 (the “Exchange Act”), which prohibit insider trading and require full and fair disclosure to stockholders in the context of proxy solicitations and tender offers. Rule 14e-3, promulgated by the U.S. Securities and Exchange Commission (“SEC”) pursuant to Section 14(e), provides that where any “offering person” has taken “a substantial step or steps” to commence a tender offer of a target company, any “other person” who is in possession of material nonpublic information relating to that tender offer is prohibited from purchasing or selling any securities of the target company, unless the information is publicly disclosed within a reasonable time prior to the purchase or sale. The complaint alleges that Valeant, who is the “offering person,” took substantial steps to commence a tender offer for Allergan and tipped Mr. Ackman (and entities he controls) — the “other person” — to those undisclosed intentions. The complaint further alleges that Mr. Ackman then traded in Allergan securities on the basis of this material, nonpublic information, reaping more than $1 billion in paper profits from unsuspecting stockholders who were unaware of the upcoming offer.
The federal court case is Allergan, Inc. v. Valeant Pharmaceuticals International, Inc., No. 14-CV-1214-DOC (ANx) (C.D. Cal.).
At the Special Meeting, Allergan stockholders would be asked, among other things, to remove a majority of the Company’s existing directors in connection with Valeant’s unsolicited exchange offer to acquire all outstanding common shares of Allergan for 0.83 shares of Valeant common stock and $72.00 in cash, or subject to proration, an amount of cash or a number of Valeant common shares with the implied value set forth in the exchange offer (the “Exchange Offer”).
The Allergan Board of Directors continues to believe that Valeant’s unsolicited exchange offer is grossly inadequate and substantially undervalues Allergan. The Allergan Board remains focused on enhancing value for stockholders, and is confident in the Company’s ability to create significantly more value than Valeant’s offer.