Royalty looks to fast-track challenge to Takeover Panel ruling

Fund seeks stay on decision regarding $6.7bn Elan bid until Commercial Court rules

Royalty Pharma is looking to ensure its bid for Elan remains open even if some resolutions are passed by shareholders at EGM.  Photograph: Bryan O’Brien

Royalty Pharma is looking to ensure its bid for Elan remains open even if some resolutions are passed by shareholders at EGM. Photograph: Bryan O’Brien

Wed, Jun 12, 2013, 19:43

Dublin-based fund Royalty Pharma has moved to fast-track its legal challenge to decisions by the Irish Takeover Panel that its $6.7 billion offer for Irish pahrma group Elan will lapse if any of four resolutions are approved by next Monday’s extraordinary general meeting of Elan shareholders.

Royalty will also apply tomorrow to the Commercial Court for a stay aimed at ensuring its own offer for Elan remains alive until the case is decided unless a meeting of the Panel, scheduled for 5pm today, agrees to such a stay.

Eoin McCullough SC, for Royalty, told Mr Justice Peter Kelly today his side intended to apply tomorrow for orders which would fast-track the leave application in the Commercial Court and effectively have the leave application heard as the full judicial review in a “telescoped” hearing.

James Doherty, for the panel, and Paul Gallagher SC, for Elan, supported a telescoped hearing but Mr Gallagher said Elan was opposed to any stay. There was “nothing to stay” as Royalty had made its increased offer for Elan on the basis of its own choice that offer would lapse if any of the four resolutions were passed, he said.

Mr Doherty said the panel’s attitude to a stay would be decided at a meeting after the court hearing. Mr McCullough said his side was entitled to a stay.

The judge said he would arrange for the application to transfer the case to the Commercial Court to be heard at 2pm tomorrow together, if necessary, with the stay application. He also indicated the full hearing could be heard next Wednesday.

In its proceedings, Royalty is challenging the June 6th decision of the Takeover Panel that Royalty will have to lapse or withdraw its offer for Elan if any of the four resolutions are passed by Monday’s EGM. The board of Elan is recommending approval of all four resolutions while Royalty has recommended rejection.

The four resolutions effectively amount to the Elan Board’s proposals for the way forward for the company, Mr McCullough outlined. They include resolutions to acquire a new business, to sell part of the existing business and to buy some existing shares. Royalty claims two of the resolutions are “immaterial”.

The proceedings arise after the Takeover Panel refused permission to Royalty to continue with its takeover bid even if the shareholders approve those two resolutions.

The panel refused in light of earlier commitments by Royalty to withdraw its offer if shareholders approved certain transactions. Royalty claims the panel’s refusal is unlawful and is depriving Elan shareholders of the opportunity to consider its improved offer.

Mr Doherty said the panel was anxious the case be determined speedily as there were sensitivites in market transactions and such cases tended to have a chilling effect.