Page 32 - מיזוגים ורכישת חברות - ברקלי תשפא

On August 13, 2015, Mylan announced that it had decided to lower the
Acceptance Condition from 80% to any amount in excess of 50% of ordinary Perrigo
shares. Shortly thereafter, Mylan held an extraordinary general meeting, at which its
shareholders voted in favor of Mylan proceeding with the offer. Mylan officially
commenced its tender offer to Perrigo shareholders on September 14, and the offer is
currently set to expire on November 13, 2015.

Perrigo commenced this action on September 17, 2015, alleging that certain
public statements made by Mylan and its leadership, including Executive Chairman Robert
Coury ("Coury"), in connection with the tender offer are false and misleading in violation
of Section 14(e) of the Exchange Act. Perrigo now moves the Court to enjoin Mylan from
closing the tender offer until a reasonable number of days after Mylan issues corrective
disclosures to Perrigo shareholders. On September 22, Mylan filed its counterclaims
alleging that certain statements made by Perrigo and Perrigo’s CEO and Chairman Joseph
Papa ("Papa") in connection with Mylan’s offer violated Section 14(e). Mylan moves for
an order directing Perrigo to provide corrective disclosures to Perrigo shareholders and
enjoining Perrigo from making further false or misleading statements.

The principal dispute in this case relates to statements made by Mylan in its
disclosures regarding its estimation of the operational synergies achievable in this
proposed transaction. Perrigo challenges certain statements made by Mylan related to
that estimate both prior to and after the reduction of the Acceptance Condition, and
Mylan responds by challenging certain Perrigo statements related to the same estimate.
Perrigo also challenges Mylan’s statements related to Mylan’s intent to cause Perrigo to
delist Perrigo shares from all public stock exchanges on which they trade after
consummation of the transaction. Mylan’s remaining counterclaims relate to Perrigo’s
statements concerning the views of Mylan’s largest shareholder, Abbott Laboratories (or
"Abbott"); Perrigo’s statements concerning the "dilutive" nature of the offer; and
Perrigo’s statements concerning the size of the offer premium. In addressing the parties’
claims below, we set forth the facts relevant to each claim.

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Mylan’s Delisting Statements

In its April 24 Rule 2.5 Announcement, Mylan disclosed that "[a]s soon as it is
appropriate and possible to do so, . . . Mylan intends to apply for the cancellation of the
listing and trading of Perrigo Shares on the NYSE and TASE. Such cancellation of the listing
and trading of Perrigo Shares is likely to reduce significantly the liquidity and marketability
of any Perrigo Shares with respect to which the Offer has not been accepted." Atkinson
Decl., Ex. 9 at 5. On August 14, the day after Mylan announced that it had lowered the
Acceptance Condition for the offer, the SEC wrote to Mylan asking it to update its

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