
When being threatened by hostile takeover attempt from another company, defensive companies could employ some tactics to prevent (or at least to discourage) the hostile takeover. We divide the tactics based on their types, i.e. the pre-offer (prevention) and post-offer tactics. Many of the tactics have fancy names. Some of the tactics commonly employed include:
A. Pre-offer
1. Staggered Board
Dividing the terms of the board members into several levels (usually 3), and only 1 level is elected periodically. This will make it harder for the hostile bidder to gain control of the target company’s board.
2. Super-majority
Creating a provision that requires a high percentage of board vote in order to approve a merger (usually 80%). This will increase the number of shares needed by the bidder to get the target’s board to approve the merger.
3. Fair Price
Super-majority provisions waived if bidder pays all stockholders the same amount. This will prevent two-tier offers from the bidder (in which the first tier is usually a preliminary offer to round up supports for the next conclusive tier).
4. Poison Pill
Issuing rights to preferred stocks to existing stockholders other than the hostile bidder (or someone suspected as being a hostile takeover culprit). The rights can be exercised after a tender offer by the bidder or when accumulation of large stock by outside party occurs. For example, when an existing shareholder suddenly builds up his holding into 20% of the company (thus suspected as being a hostile takeover culprit), other shareholders can exercise a right to buy company’s share at steep discount, thereby diluting the effect of the hostile takeover suspect’s control in the company. This move will make it more expensive for the bidder to acquire target’s stock and accumulate shares needed for considerable influence in the board.
Before resorting to this poison pill, the target company may try to employ a milder type of defense (called Scorched Earth Defense) to make itself unattractive to the bidder, for example by restructuring debt terms to expire soon after the proposed takeover date, or by selling the “crown jewel” of the company.
Poison pills tactic is still allowed in the U.S. but is illegal in many countries including those in Europe.
5. Dual-class Recapitalization
Issuing a new class of stock to existing stockholders which has high voting rights but low dividends or marketability (uninteresting to sell). Usually accompanied by an option to convert the new stock class into ordinary common stock after some time. This will give more voting power to existing stockholders to fend off hostile bidder when a proxy fight occurs.
6. Golden Parachute
Setting a provision in the CEO compensation plan that includes big bonus (either in cash or stocks, or both) for him if the company is acquired by other company. This will discourage the bidder from making further effort to takeover the target company.
7. Lobster Trap
Setting a provision that prohibits a party with more than some portion (usually 10%) of convertible securities (convertible bonds, warrants, rights, convertible preferred stocks) to convert his holding into a voting common stock. This will make it harder for the hostile bidder to acquire necessary stocks to build up control in target company.
B. Post-offer takeover defenses
1. Targeted Repurchase / Greenmail
Repurchasing a block of shares held by shareholders. May also include an effort to repurchase the block of shares already owned by potential hostile bidder (at a premium of course). This will eliminate potential bidder.
2. Standstill Agreements
Limiting the ownership of stocks by any party to a specific amount or a specific time period. This will also eliminate potential bidder.
3. Litigation
Filing suit against the hostile bidder for violating antitrust or corporate law. This will fend off the hostile bidder, or at least delay the takeover process.
4. Asset Restructuring/Crown Jewel Defense
Purchasing assets unwanted by the bidder, or selling assets most liked by the bidder. When the target company sells assets/business part most liked by the bidder, this effort is called Crown Jewel Defense, for the target selling its “crown jewel” (most valuable part) of the company. This will reduce the target company’s appeal to the hostile bidder, therefore discouraging him to continue with his bid.
5. Liability Restructuring
Issuing shares to friendly party and then repurchasing it (usually at premium) after the takeover fails to occur. This will make it more difficult for the bidder to acquire enough shares to achieve control / to propose a proxy fight.
Another alternative of liability restructuring involves increasing debt to a very high level, so that it deters the interest of the bidder. This mounting up debts by the target company is called Jonestown Defense.
6. White Knight
Engaging a friendly party (“the white knight”) to merge with the target company to sidestep the merger offer by the unwanted hostile bidder. Unlike liability restructuring, the target company does not simply sell shares to the white knight but instead fully merges with it. In some cases, the white knight itself has been having an interest in the target company after all.
7. Pac-man Defense
Counter-attacking the hostile bidder by buying the bidder’s shares and take major control in the company. This will stop the takeover effort from the bidder. Since this tactic requires vast amount of resources, usually the target company who wants to employ this tactic also seek help from other friendly party.
References:
Ruback, Richard. Chapter 3: An Overview of Takeover Defenses. Mergers and Acquisitions. University of Chicago Press. 1987. Available online at: http://www.nber.org/chapters/c5821.pdf
http://www.investopedia.com/articles/stocks/08/corporate-takeover-defense.asp
http://en.wikipedia.org/wiki/Takeover#Tactics_against_hostile_takeover
http://money.howstuffworks.com/hostile-takeover3.htm