Warding Off Hostile Takeovers

Investopedia

A corporate takeover is a complex business transaction pertaining to one company purchasing another company. Corporate takeovers typically take place for many logical reasons, including anticipated synergies between the acquiring company and target company, potential for significant revenue enhancements, likely reduced operating costs and beneficial tax considerations. In the U.S., most corporate takeovers are friendly in nature, meaning that the majority of key stakeholders support the acquisition. However, for many reasons, potential corporate takeovers can become hostile. With this in mind, some basic defense strategies can be used by the management of potential target companies to deter unwanted acquisition advances.

Overview of the Williams Act of 1968
Hostile corporate takeover attempts typically take place when a potential acquirer makes a tender offer, or direct offer, to the stockholders of the target company. This process happens over the opposition of the target company’s management, and it usually leads to significant tension between the target company’s management and that of the acquirer. In response to such practice, Congress passed the Williams Act to offer full and fair disclosure to shareholders of the potential target companies, and to establish a mechanism that gives additional time for the acquiring company to explain the acquisition’s purpose.

The Williams Act requires the acquiring company to disclose to the Securities and Exchange Commission the source of funds that will be used to accomplish the acquisition, the purpose for which the offer is being made, the plans the acquirer would have if it is successful in the acquisition, and any contracts or understandings concerning the target corporation. While the Williams Act was designed to make the corporate takeover process more orderly, the increased use of derivative securities have made the Act a less useful defense mechanism. As a result, both preemptive and responsive corporate defense strategies need to be considered by the management of companies likely to be targeted for acquisition.

Preemptive Corporate Takeover Defense Strategies
These types of strategies can be put in place by a company’s management to ward off potential takeovers before the target company is identified as a potential candidate for acquisition. A company can put in place many types of preemptive defense strategies to mitigate an attempted corporate takeover.

A first preemptive line of defense against a hostile corporate takeover would be to establish stock securities that have differential voting rights (DVRs). Stocks with this type of provision provide fewer voting rights to shareholders. For example, holders of these types of securities may need to own 100 shares to be able to cast one vote. U.S. companies that issue stock with DVRs include Viacom (Nasdaq:VIA) and News Corp (Nasdaq:NWS). It is anticipated that such securities will gain more popularity in the future, as DVRs not only help provide protection against hostile takeovers, but they typically trade at a discount relative to company stock and they pay a higher dividend. As a result, DVR shares are attractive securities to a variety of investors.

A second preemptive line of defense against a hostile corporate takeover would be to establish an employee stock ownership plan. An ESOP is a tax-qualified retirement plan that offers tax savings to both the corporation and its shareholders. By establishing an ESOP, employees of the corporation hold ownership in the company. This, in turn, means that a greater percentage of the company will likely be owned by people that will vote in conjunction with the views of the target company’s management rather than with the interests of a potential acquirer. There were 11,400 ESOPs in the U.S. in early 2009 and more than 13 million employees participating in such plans. The supermarket, construction and engineering industries are represented by many companies with an ESOP plan. A couple of America’s largest employee-owned companies include Publix Supermarkets, which employs 158,000 people, and Parsons, a construction and engineering firm, which is owned by its 11,500 employees.

Responsive Corporate Takeover Defense Strategies
These types of strategies can be implemented by a company after it has been identified as a potential acquisition target by a prospective acquirer. A company can put in place many types of responsive defense strategies to mitigate an attempted corporate takeover.

A first responsive line of defense against a hostile corporate takeover would be to establish a poison pill provision that could be used to ward off or deter prospective acquirers. One type of poison pill would allow existing shareholders, excluding the acquirer, the right to purchase the target’s stock at a price considerably below its market value. By allowing existing shareholders to purchase additional shares at a discounted price, the shares held by the acquirer would become diluted, making the takeover transaction more unattractive and expensive. In 2012, such a strategy was implemented when Carl Icahn announced that he had purchased nearly 10% of the shares of Netflix in an attempt to take over the company. The Netflix board responded by instituting a shareholder-rights plan to make any attempted takeover excessively costly. The terms of the plan stated that if anyone bought up 10% or more of the company, the board would allow its shareholders to buy newly issued shares in the company at a discount, diluting the stake of any would-be corporate raiders and making a takeover virtually impossible without approval from the takeover target.

A second responsive corporate takeover defense strategy is the alliance of a target company with an investor known as a white knight. When utilizing a white knight strategy, the target company seeks a preferred investor to acquire the company. Typically, the white knight agrees to pay a premium above the acquirer’s offer to buy the target company’s stock, or the white knight agrees to restructure the target company after the acquisition is completed in a manner supported by the target company’s management. Classic examples of white knight engagements in the corporate takeover process include PNC’s (NYSE:PNC) purchase of National City Corporation in 2008 to help the company survive during the subprime mortgage lending crisis, and Fiat’s (OTC:FNDSF) takeover of Chrysler in 2009 to save it from liquidation..

A third responsive corporate takeover defense strategy is a concept known as greenmail. This refers to a targeted repurchase, where a company buys a certain amount of its own stock from an individual investor, usually at a substantial premium. These premiums can be thought of as payments to a potential acquirer to eliminate an unfriendly takeover attempt. One of the first applied occurrences of this concept was in July 1979, when Carl Icahn bought 9.9% of Saxon Industries stock for $7.21 per share. Subsequently, Saxon was forced to repurchase its own shares at $10.50 per share to unwind the corporate takeover activity. While the anti-takeover process of greenmail is effective, some companies, like Lockheed Martin (NYSE:LMT), have implemented anti-greenmail provisions in their corporate charters. Over the years, greenmail has diminished in usage due to the capital gains tax that is now imposed on the gains derived from such hostile takeover tactics.

Conclusion
Corporations have many hostile takeover defense mechanisms at their disposal. Given the level of hostile corporate takeovers that have taken place in the U.S. during the first part of this century, it may be prudent for management to put in place preemptive corporate takeover mechanisms, even if their company is not currently being considered for acquisition. Such policies should be seriously pursued by companies that have a well-capitalized balance sheet, a conservative income statement that exhibits high profitability, an attractive cash flow statement and a large or growing market share for its products or services. In addition, if the company exhibits significant barriers to entry, a lack of competitive rivalry in the industry, a minimal threat of substitute products or services, minimal bargaining power of the buyers and minimal bargaining power of the suppliers, the case for implementing preemptive hostile strategies while developing a thorough understanding of responsive takeover defense mechanisms is highly advised.

More From Investopedia

Rates

View Comments (0)

Recommended for You

  • Tycoon buys 30 Rolls-Royces for Macau hotel

    A Hong Kong tycoon has placed the biggest ever order for Rolls-Royce cars, agreeing to buy 30 Phantoms to chauffeur guests at a luxury resort he's building in the global gambling capital of Macau. Stephen Hung's $20 million purchase surpasses the 14 Phantoms bought by Hong Kong's Peninsula Hotel in…

    Associated Press
  • Enjoy this refreshing Triple Play offer!

    Get FIOS TV Mundo starting at $79.99/mo. w/ no annual contract + 2-yr. price guarantee. Or sign for 2 yrs. & get a $300 prepaid Visa. Click here.

    AdChoicesVerizon FiOS ®Sponsored
  • Tycoon's arrest sends shock wave through Russia

    Tycoon's arrest sends shock wave through Russia MOSCOW (AP) — The arrest of a Russian telecoms and oil tycoon has sent shock waves through the country's business community, with some fearing a return to the dark days of a decade ago, when the Kremlin asserted its power by imprisoning the country's…

    Associated Press
  • Before You Buy Alibaba, Check Out 4 Top China Stocks

    Before You Buy Alibaba, Check Out 4 Top China Stocks While investors gear up for Alibaba Group 's (BABA) hotly anticipated initial public offering, don't forget about other Chinese stocks that are worth keeping an eye on. Today's Young Guns Screen of

    Investor's Business Daily
  • Costco Stores in Canada to Stop Taking American Express

    “The credit card relationship between American Express and Costco Wholesale Canada will not be renewed when it expires” on Dec. 31, the company said today in an e-mail to Canadian customers. The message was attributed to Lorelle Gilpin, vice president of marketing and membership for Costco…

    Bloomberg
  • "The Retiree Next Door": How successful retirees stretch their savings

    "The Retiree Next Door": How successful retirees stretch their savingsBy the time she hit her late 40s, Toni Eugenia wasn’t sure she would ever be able to retire. Eugenia, 56, a pharmacy technician who lived in Houston, was nearly $200,000 in debt and

    Yahoo Finance
  • As Fed takes baby steps, Cramer's trick for profit

    In turn, Cramer says making money in the market, involves looking at the environment through the lens of the Fed. "The trick is to remember that they speak for the common person," Cramer said. "The Fed wants the common person to make money." With that backdrop always in mind, Cramer says it becomes…

    CNBC
  • Play

    Citi, Bank of America Offer Discounted Mortgages

    Citigroup and Bank of America will offer mortgages at discounted interest rates to help borrowers with low incomes or subprime credit. AnnaMaria Andriotis joins MoneyBeat. Photo: Getty.

    WSJ Live
  • Accomplish your career goals

    At Capella University, you can learn the skills you need to succeed. Why wait another day? Get started today.

    AdChoicesCapella UniversitySponsored
  • CNBC Anchor Calls Out Fed-Hater Bill Fleckenstein In Startling Shouting Match

    CNBC Bill Fleckenstein of Fleckenstein Capital appeared on CNBC's Futures Now program on Tuesday. Futures Now host Jackie DeAngelis came out swinging, asking Fleckenstein right at the top if he was willing to admit that he had misunderstood monetary policy. Sounding taken aback, Fleckenstein…

    Business Insider
  • Beanie Babies creator's sentence debated in court

    Beanie Babies creator's sentence debated in court CHICAGO (AP) — Federal prosecutors seeking to put the billionaire creator of Beanie Babies in prison for hiding millions in Swiss bank accounts told appellate court judges Wednesday that the toymaker's sentence of probation threatens to erode the…

    Associated Press
  • Apple to unveil new iPads, operating system on Oct. 21 : report

    The company plans to unveil the sixth generation of its iPad and the third edition of the iPad mini, as well as its operating system OS X Yosemite, which has undergone a complete visual overhaul, the Internet news website said. Trudy Muller, a spokeswoman for Apple, declined to comment. The iPad is…

    Reuters
  • Gilead Stock Is Falling On These Drug Setbacks

    Gilead Stock Is Falling On These Drug Setbacks Gilead Sciences (GILD) shares are backsliding Wednesday on news that the patient drop-out rate for hepatitis C drug Sovaldi is quadruple that of clinical trials. In addition, the biotech's Phase 2 study results

    Investor's Business Daily
  • Here's What Mark Cuban Wishes He Knew About Money In His 20s

    Cuban is the owner of the Dallas Mavericks basketball team. Billionaire investor and entrepreneur Mark Cuban is generous with his advice. When we asked him what he wishes he'd known about money in his 20s, he said:

    Business Insider
  • Margaritaville casino owners seek bankruptcy

    The owner of Biloxi's Margaritaville casino has filed for Chapter 11 bankruptcy protection Tuesday, only hours before a hearing where the landlord aimed to seize the property. The filing by MVB Holding LLC in U.S. Don Dornan, a lawyer for landlord Clay Point LLC, said the company had planned to ask…

    Associated Press
  • 1 Tip To Lose Belly Fat

    It's Hollywood's Hottest Diet And Gets Rid Of Stubborn Fat Areas Like Nothing Else.

    AdChoicesagoodcooksSponsored
  • Play

    What the Fed Meeting Means for Bonds

    Janet Yellen & Co. are expected to hint at their timetable for raising interest rates. Here's how investors should prepare ahead of the meeting.

    WSJ Live
  • Embraer to sell 50 E-175 jets to Republic in $2.1 billion deal

    Brazil's Embraer SA, the world's third largest commercial planemaker, said on Wednesday it booked a firm order from U.S. The deal, which will be included in Embraer's order book for the third quarter, is valued at $2.1 billion, the planemaker said in a securities filing. The planes will be operated…

    Reuters
  • SHOE COMPANY: Our CEO Just Disappeared And Most Of The Money Is Gone

    "and like that: he's gone." This is an actual headline from a company press release: "CEO and COO disappeared, most of the company's cash missing." (Via FastFT) In a statement, German-based shoe company Ultrasonic said its CFO,  Chi Kwong Clifford Chan, has been unable to reach the company's CEO,…

    Business Insider
  • Billionaire Investor Says Chinese People Work Harder And Western Companies Could Face Deep Trouble After Alibaba IPO

    Michael Moritz, the chairman of VC firm Sequoia Capital, is a huge fan of Chinese internet companies and reiterated his enthusiasm for the Chinese market in an interview with The Wall Street Journal Wednesday. The billionaire investor described the Alibaba IPO as a “major landmark event” that is as…

    Business Insider
  • Top Analyst Upgrades and Downgrades: AEP, BHP, GE, Incyte, 3M, Tyco, Under Armour and More

    Top Analyst Upgrades and Downgrades: AEP, BHP, GE, Incyte, 3M, Tyco, Under Armour and More Stocks were firm on Wednesday morning ahead of the FOMC meeting outcome. Tuesday’s rally may have sparked higher interest again, and investors are looking for bargains

    24/7 Wall St.
  • Don't buy Alibaba stock: 'Dean of Valuation'

    Investors should steer clear of Alibaba , valuation expert Aswath Damodaran said Wednesday. On CNBC's " Fast Money ," Damodaran, a professor of finance at New York University's Stern School of Business, noted that he was looking at Alibaba stock from the perspective of a long-term investor, not a…

    CNBC
  • Norwich Information Security MS

    Online, accredited, top ranked. NSA Center of Academic Excellence. Recognized by the Department of Homeland Security. Download your free brochure!

    AdChoicesNorwich UniversitySponsored
  • 6 Things Debt Collectors Wish You Knew

    The work debt collectors do is not popular, and has become increasingly derided by those who don’t like what we do or simply don’t know the facts about debt collection. Too often, debt collection is painted with a broad brush to create a portrait that isn’t accurate, and doesn’t properly educate…

    Credit.com