Saturday 20 January 2018

Royalty wants appeal over Elan bid heard next week

Tim Healy

THE Commercial Court is being asked to fast-track a legal challenge to a decision by the body responsible for monitoring takeovers of companies over a US$6.7bn (€5m) offer by investment firm Royalty Pharma for drug company Elan.

Royalty is seeking leave to challenge an Irish Takeover Panel (ITP) decision that the offer will lapse if any of four resolutions are approved by next Monday's extraordinary general meeting of Elan shareholders.

Royalty will also apply 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 ITP, scheduled for 5pm today, agrees to such a stay.

Eoin McCullough SC, for Royalty, told Mr Justice Peter Kelly yesterday his side intended to apply today 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 ITP, 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 ITP's attitude to a stay would be decided at a meeting later yesterday. 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 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 6 decision of the ITP 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 including on the acquisition of a new business, to sell part of the existing business and to buy some existing shares. Royalty claims two of the resolutions are "immaterial".

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