Table of Contents
- 1 Definition Of Hostile Takeover
- 2 Methods of Hostile Takeover
- 3 Reasons For Hostile Takeover
- 4 Reasons For Opposing Takeover
- 5 Defensive Measures
- 6 Pre-offer Takeover Defence Mechanism
- 7 Post-Offer Takeover Defence Mechanism
- 8 Example Of Hostile Takeover
Definition Of Hostile Takeover
A hostile takeover is the acquisition of one organization by another. Hostile takeover takes place by approaching a company’s shareholders directly or fighting to substitute the management and get the acquisition approved. In a hostile takeover, the target company’s management does not wish the takeover to go through. The buyer takes control of the target company and forces them to agree to the sale. Therefore hostile takeover takes place only in publicly traded companies.
Further on we will see the methods enabling hostile takeovers.
Methods of Hostile Takeover
The two primary methods in which a hostile takeover takes place are:
The tender offer is a public bid made by the acquiring company for a large segment of the target company’s stocks at a fixed price. The price quoted is usually higher than the market value of the stock. The premium price is offered so as to convince the shareholders to sell their shares. The bid holds a specific time limit and may have conditions which the target company must follow if the offer gets approval. The acquiring company must file required documents with the regulatory body and should disclose their plans for the acquired company. Sun Pharma’s attempt to acquire Israel Company Taro is an example of tender offer method.
In the proxy fight method, the buyer tries to influence the shareholders to vote out the current management in favor of the team who will support the takeover. Proxy is the term referred to the ability to let someone else vote on behalf of the shareholders. Thus the buyer uses the proxy method to vote for the new board. Usually, managers and displeased shareholders within the company attempt to change the ownership by getting the confidence of the remaining shareholders. The defense strategies that may be applied to prevent the takeover may not be strong enough for the proxy fight method of a takeover. Hewlett-Packard’s hostile takeover of Compaq was conducted by the proxy fight method.
After understanding the methods of a hostile takeover, let’s look into the reasons for same.
Reasons For Hostile Takeover
There can be numerous reasons why a company may desire to take over another company such as to gain majority market share, cheap valuations with low promoter stake, etc. The company may want to take over and use the acquired firm as a cash cow for the benefit of the primary company.
Reasons For Opposing Takeover
Not all target companies wish to be taken over. This may lead to the hostile takeover as opposed to the approach of friendly acquisition. The other primary reasons for the reluctance of the target company are:
- It may be that a company simply wants to stay independent and have complete control over its operations.
- The members of the management are trying to protect their jobs. They realize that they will be replaced soon after the buyout is completed.
- The shareholders and board of directors might fear the reduction in the value of the company as an aftermath of the buyout. This will also put the company in the danger of running out of business.
These are few of the reasons why a target company opposes the takeover. These reasons induce the acquiring company to commence a hostile takeover.
Now let’s have a look at the defense mechanisms that can be used by the target company in case of hostile takeovers.
Defensive measures can be put into action by the management of the target company either before or after the hostile offer. The defensive measures can be used for:
- Delaying the transaction.
- Negotiating a better deal.
- Keeping the target company independent.
Defensive measures can be of two types:
- Pre-offer Takeover Defence Mechanism
- Post-offer Takeover Defence Mechanism
Generally, the experts recommend setting up pre-offer defensive measures as they are less scrutinized in the court in comparison to the post-offer defense measures.
Pre-offer Takeover Defence Mechanism
These are the following types of pre-offer defensive measures:
The target company gives its shareholders the right to buy the stocks of the target company at a large discount to the stock’s market price.
The target company gives its bondholders the right to sell the bonds back to the company at a pre-determined redemption price, which is generally above or at the par value.
Restrictive Takeover Laws
The companies can incorporate themselves in the states where the law helps them to defend hostile takeovers.
Under this strategy, the target company’s board of directors is divided into three groups of equal sizes. Each group can be elected in a staggered way for the three-year term. This arrangement will deter an acquirer as he can win only one-third of the directors in a year.
Restricted Voting Rights
Under this measure, shareholders who have acquired a large percentage of stocks recently are restricted to vote.
Supermajority Voting Provisions
Through this provision, a higher majority, say 85%, of the shareholders, need to approve the transaction, instead of standard 51%.
Fair Price Amendments
Through such amendments, the target company does not allow mergers where an offer is below a threshold value.
Compensation arrangements are made between the target and the senior management. The managers have the right to leave the company with huge exit payouts if there is any change in the corporate control.
Post-Offer Takeover Defence Mechanism
These are the following types of post-offer defensive measures:
‘Just Say No’ Defence
The easiest way is to decline the offer. If the acquiring company tries the bear hug or even a tender offer, the management of the target company should explain to the shareholders and the board of directors why the deal is not the best for the company.
The management can allege the violation of securities law and file a court case against the acquirer.
The target company makes an agreement with the acquirer to buy back its own shares from the acquirer at a premium. This is mostly accompanied by another clause prohibiting the acquirer to make another attempt for a specific time period.
The target company can acquire its stocks from any shareholders by using a share repurchase. This can lead to an increase in the cost for the acquirer.
The target company uses a huge amount of debt to finance the share repurchases. However, not all shares are repurchased.
‘Crown Jewel’ Defence
The management of the target company can identify the major motivation behind the deal i.e a specific subsidiary or an asset and sell it off to another party.
The target company can make a counter-offer to take over the acquiring company and defend itself. However, other defensive measures can’t be used later if the company decides to use this strategy.
White Knight Defence
The board of the target company looks for a third party that has a better fit with the company to buy the target company in place of the hostile acquirer. The third party is referred to as ‘White Knight’.
White Squire Defence
The board of the target company asks a third party to buy a substantial but a minority stake in the target company. This stake would be enough to obstruct the takeover with no need to sell the company.
Example Of Hostile Takeover
After gaining an insight into the concept of hostile takeovers, let’s look at an example to have a clearer view of the same.
AOL and Time Warner, $164billion
One of the classic examples of a hostile takeover is the takeover of Time Warner by AOL in the year 2000. AOL announced its plan to take over the much larger and successful firm, Time Warner. However, Time Warner was resistant towards the takeover and wanted to commence functioning as an independent entity. This pushed AOL to opt for the hostile method of the takeover. This deal was termed as the deal of the millennium.
The term, ‘hostile takeover’ turns the boardroom into a battlefield. In the corporate world, a takeover results in volatile stock prices and lost jobs. The hostile takeovers create damage to a firm’s reputation and affect lives of all those associated in the years to come. There are various defensive measures available to the managers to avoid getting acquired involuntarily. These can be used before or after the offer is made. It is important that managers know these measures in detail and makes provisions for the same. A target company needs to have its defenses strong if they do not want to be acquired forcefully.1–3