Washington D.C. Hostile M&A Defense Strategy

This involves the bidder discreetly buying up shares of the target company on the public market. The primary objective is to acquire a substantial stake without drawing attention, as public knowledge of the acquisition could drive up the stock price. Once the bidder's ownership crosses a certain threshold (typically 5% in the U.S.), they are required to publicly disclose their position, but by then, a significant foundation for a takeover has been laid.

A tender offer is a public, direct offer to the target company's shareholders to buy their shares at a premium price for a limited time. This method is a way to bypass the target's board of directors entirely. The offer is often made at a price significantly higher than the current market value to incentivize shareholders to sell their shares quickly, allowing the bidder to rapidly acquire a controlling interest.

A proxy contest, or proxy battle, involves the bidder trying to gain control of the target company's board of directors. The bidder will attempt to convince other shareholders to grant their voting power (proxies) to a new slate of director candidates. This approach can be less capital-intensive than a tender offer but requires a persuasive campaign to sway a majority of the shareholders.

This is a more aggressive tactic where a bidder buys a significant block of a company's shares and then threatens a hostile takeover. They then demand that the target company repurchase their shares at a substantial premium to end the threat. While this can be financially damaging to the target company, it can be a quick way to stop a potential takeover.

Also known as a Shareholder Rights Plan, a "poison pill" is one of the most powerful and widely used defense mechanisms. It grants existing shareholders (excluding the hostile bidder) the right to purchase new shares at a steep discount if a hostile bidder acquires a certain percentage of the company’s stock. This action dilutes the bidder's stake, making the takeover prohibitively expensive. In Washington, D.C., the legality of a poison pill is generally upheld by courts as a valid exercise of a board's fiduciary duty to protect shareholder value, though it must be carefully crafted to avoid legal challenges.

A staggered board is a defense mechanism where only a portion of the board of directors is up for election each year. This structure prevents a hostile bidder from taking immediate control of the board in a single proxy fight. To secure a majority on the board, a bidder would need to win successive elections over multiple years, which can significantly deter a takeover attempt by making it a long and drawn-out process.

A "white knight" is a friendly third party that a target company seeks out to acquire it instead of the hostile bidder. This alternative acquisition is often structured on more favorable terms for the current management and shareholders, providing an escape from the hostile bid while preserving company value and control. The target company must quickly find and negotiate with a suitable white knight to be effective.

The target company can use its own funds to buy back its shares on the open market. This reduces the number of shares available, raises the stock price, and increases the ownership percentage of existing, friendly shareholders, making the hostile acquisition more costly and difficult. This must be done carefully to comply with all U.S. Securities and Exchange Commission (SEC) regulations, as improper execution could lead to charges of market manipulation.