Hostile Takeover Explained: What It Is, How It Works, and Examples

What Is a Hostile Takeover?

A hostile takeover happens when an entity takes control of a company without the knowledge and against the wishes of the company's management. A hostile takeover is an acquisition strategy requiring that the entity acquire and control more than 50% of the voting shares issued by the company. It is considered bad business etiquette.

Understanding Hostile Takeovers

A hostile takeover allows the new majority shareholder(s) to control the acquired business. The company being acquired in a hostile takeover is called the target company, while the one executing the takeover is called the acquirer. Reasons that hostile takeovers occur, from the acquiring party's point of view, often coincide with those of any other acquisition or merger, such as:

• A belief that a company may be significantly undervalued
• A desire to access or own a company's brand, operations, technology, or industry foothold
• A strategic move by activist investors looking to effect change in a company's operations

Hostile takeovers are generally initiated in two ways:

• A tender offer to purchase the voting shares of another company at a premium above the current market value (CMV)
• In a proxy fight, where the entity tries to persuade stockholders to vote out the current management and vote in management that would allow the takeover
  

Defendes Against a Hostile Takeover

To deter unwanted takeovers, companies may have preemptive defenses or employ reactive defenses to fight back. Some of these defenses are:

• Differential voting rights
• Employee stock ownership program
• Crown jewel
• Poison pill
• Other

Differential Voting Rights (DVRs)

To protect against hostile takeovers, a company can establish stock with differential voting rights (DVRs), where some shares carry greater voting power than others. This can make it more difficult to generate the votes needed for a hostile takeover if management owns a large enough portion of shares with more voting power. Shares with less voting power can also pay a higher dividend, making them more attractive investments.

Employee Stock Ownership Program (ESOP)

Establishing an employee stock ownership program (ESOP) involves using a tax-qualified plan in which employees own a substantial interest in the company. Employees may be more likely to vote with management. As such, this can be a successful defense.

However, such schemes have drawn scrutiny in the past. In some cases, courts have invalidated defensive ESOPs on the grounds that the plan was established for the benefit of management, not shareholders.

Crown Jewel

In a crown jewel defense, a provision of the company's bylaws requires the sale of the most valuable assets if there is a hostile takeover, thereby making it less attractive as a takeover opportunity. This is often considered one of the last lines of defense.

Poison Pill

This defense tactic is officially known as a shareholder rights plan. It allows existing shareholders to buy newly issued stock at a discount if one shareholder has bought more than a stipulated percentage of the stock, resulting in a dilution of the ownership interest of the acquiring company. The buyer who triggered the defense, usually the acquiring company, is excluded from the discount.

There are two types of poison pill defenses: the flip-in and flip-over. A flip-in allows existing shareholders to buy new stock at a discount if someone accumulates a specified number of shares of the target company. The acquiring company is excluded from the sale, and its ownership interest becomes diluted.

A flip-over strategy allows the target company's shareholders to purchase the acquiring company's stock at a deeply discounted price if the takeover goes through, which punishes the acquiring company by diluting its equity.

The term poison pill is often used broadly to include a range of defenses, including issuing additional debt, which aims to make the target less attractive, and stock options to employees that vest upon a merger.

Other Strategies

Sometimes, a company's management will defend against unwanted hostile takeovers by using several controversial strategies, such as the people poison pill, a golden parachute, or the Pac-Man defense.

A people poison pill provides for the resignation of key personnel in the case of a hostile takeover, while the golden parachute involves granting members of the target's executive team benefits (bonuses, severance pay, stock options, among others) if they are ever terminated as a result of a takeover. The Pac-Man defense has the target company aggressively buy stock in the company attempting the takeover.

Hostile Takeover Examples

A hostile takeover can be a difficult and lengthy process, and attempts often end up unsuccessful. For example, billionaire activist investor Carl Icahn attempted three separate bids to acquire household goods giant Clorox in 2011, which rejected each one and introduced a new shareholder rights plan in its defense. The Clorox board even sidelined Icahn's proxy fight efforts, and the attempt ultimately ended in a few months with no takeover.

An example of a successful hostile takeover is that of pharmaceutical company Sanofi's (SNY) acquisition of Genzyme. Genzyme produced drugs for the treatment of rare genetic disorders, and Sanofi saw the company as a means to expand into a niche industry and broaden its product offering. After friendly takeover offers were unsuccessful as Genzyme rebuffed Sanofi's advances, Sanofi went directly to the shareholders, paid a premium for the shares, added in contingent value rights, and ended up acquiring Genzyme.

The Bottom Line

A hostile takeover is where a party attempts to purchase a controlling share of a company's voting stocks or influences shareholders to vote out current management and replace them. Reasons hostile takeovers occur are a belief that a company may be undervalued, or the desire to access or own a company's brand, operations, technology, or industry foothold. It might also be a strategic move by activist investors looking to effect change in a company's operations.