Page 35 - מיזוגים ורכישת חברות - ברקלי תשפא

ownership of Perrigo, the structure and governance processes of Perrigo’s board, and the
interests of Perrigo in light of then‐existing market and competitive conditions." Sheehan
Declaration 5 6. Sheehan asserted that precisely because "it is not possible to predict
exactly what considerations the Perrigo board (or Mylan) would have to take into
account" in the future, Mylan intends to cause delisting "‘as soon as practicable’ following
consummation of the transaction—rather than on a specific date or at a specific percent
ownership level." Id. Nonetheless, he shared general "considerations that have led Mylan
to conclude that its current intention is to delist Perrigo shares as soon as practicable":
"[E]liminat[ing]" the "needless costs and inefficiencies" of maintaining Perrigo’s separate
public listing in a situation where the primary benefits of being publicly listed—access to
capital and the ability to use listed shares to acquire other companies—could be provided
by Mylan through Mylan’s own public listing. Id. 8‐9. He did not, however, refer to the
potential cost of reduced liquidity to Perrigo minority shareholders.

The question is whether this evidence suggesting that Mylan has yet to formulate
specific plans concerning its intent to delist means Mylan is likely to have "omit[ted] to
state any material fact necessary in order to make the statements made, in the light of
the circumstances under which they are made, not misleading." 15 U.S.C. § 78n(e). We
conclude that it does not.

By noting that it "currently intends" to delist "as soon after consummation of the
offer as is practicable," Wilson Decl., Ex. JJ at 28, Mylan sufficiently conveyed the inchoate
nature of its plan. The effect of adding the "as is practicable" language was to
demonstrate that Mylan had not yet determined when delisting would, if ever, be
practicable. Moreover, by stating that delisting could subject it to legal challenges from
minority shareholders, Mylan disclosed that it could be found unlawful—the clear
implication being that the issue of legality would weigh on any future decision by Mylan
as to the "practicability" of the action. Here, the "excluded fact" of a specific plan for
executing an intent that is on its face a provisional decision does not show that Mylan
"lacked the basis for making those statements that a reasonable investor would expect."
Omnicare, 135 S. Ct. at 1333.

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