Ackman Requests List Of AGN ShareholdersVW Staff
BY EMAIL AND FACSIMILE
May 12, 2014
Matthew J. Maletta
Vice President, Associate General Counsel and Secretary
2525 Dupont Drive
Irvine, CA 92612
Facsimile: (714) 246-4774
Re: Request for Stocklist Materials
Dear Mr. Maletta:
Pershing Square Capital Management, L.P., a Delaware limited partnership, submits this letter on behalf of PS Fund 1, LLC, a Delaware limited liability company (the “Requesting Stockholder”), which beneficially owns an aggregate of 28,878,538 shares of common stock, par value $.01 per share, of Allergan, Inc., a Delaware corporation (the “Company”). Attached as Exhibit A is documentary evidence of the Requesting Stockholder’s beneficial ownership of 28,878,538 shares of common stock of the Company as of May 9, 2014, and such documentary evidence is a true and correct copy of what it purports to be. The Requesting Stockholder continues to own the shares reflected on Exhibit A. In addition, attached as Exhibit B is the Schedule 13D and amendments thereto filed by Pershing Square Capital Management, L.P., which provide additional information regarding the Requesting Stockholder’s ownership of common stock of the Company.
Pursuant to Section 220 of the Delaware General Corporation Law (the “DGCL”), the Requesting Stockholder hereby demands, during the Company’s usual hours for business, to inspect, and to make copies and extracts from, the Company’s stock ledger, a list of its stockholders and its other books and records, including the following information:
(a) A complete record or list of the holders of record of the outstanding shares of the Company’s capital stock (“Stock”), certified by the Company or its transfer agent and registrar, showing in respect of each such holder (A) the name, last known business, residence or mailing address, and telephone number of each such holder; (B) the number of shares of Stock held by each such holder; and (C) the account numbers of each such holder.
(b) A complete record or list of the participants to whom shares of Stock are attributable under any employee stock ownership, stock purchase, stock option, retirement, restricted stock, incentive, profit sharing, dividend reinvestment or any similar plan of the Company in which voting of shares under the plan is controlled, directly or indirectly, individually or collectively, by such plan’s participants, showing in respect of each such participant (i) the name, last known business, residence or mailing address, and telephone number of each such holder; (ii) the number of shares of Stock attributable to each such participant in any such plan; and (iii) the name, business address and telephone number of the trustee or administrator of any such plan, and a detailed explanation of the voting treatment not only of shares of Stock for which the trustee or administrator receives instructions from participants, but also shares of Stock for which either they do not receive instructions or shares of Stock which are outstanding in any such plan but are unallocated to any participant.
(c) A complete record or list of the holders of Stock and respondent banks who have elected to receive electronic copies of proxy materials with respect to meetings of stockholders of the Company pursuant to Rule 14a-16(j)(2) of the Exchange Act.
(d) All transfer journals and daily transfer sheets showing changes in the names, addresses and number of shares of holders of Stock which are in or come into the possession or control of the Company or any of its transfer agents, registrars or proxy solicitors, or which can reasonably be obtained from brokers, dealers, banks, clearing agencies, voting trustees or their respective nominees.
(e) All information in or which comes into possession or control of the Company or any of its transfer agents, registrars or proxy solicitors, or which can reasonably be obtained from The Depository Trust Company (DTC), brokers, dealers, banks, clearing agencies, voting trustees or their respective nominee, concerning the names, addresses and number of shares of Stock held by the participating brokers and banks named in the individual nominee names of Cede & Co., specifically with respect to Cede & Co., the DTC Daily Participant Lists (to be provided electronically daily), or other similar depositories or nominees, including respondent bank lists.
(f) All information in or that comes into the Company’s possession or control, or that can reasonably be obtained from brokers, dealers, banks, clearing agencies, voting trustees or their respective nominee (including Broadridge Financial Services, Mediant Communications and The Bank of New York), relating to the names of the beneficial owners of Stock pursuant to Rule 14b-1(c) or Rule 14b-2(c) under the Securities Exchange Act of 1934, as amended, including a Non Objecting Beneficial Owners or “NOBO” list.
(g) All stop lists or stop transfer lists relating to any shares of Stock.
(h) All voting detail from the Company’s 2014 annual meeting of stockholders, including (i) detailed listing of register holders’ votes and (ii) copies of all votes of beneficial holders, including, but not limited to, all votes issued by Broadridge Financial Services, Mediant Communications, ProxyTrust and all other votes issued by any bank, broker, nominee or trust company, including any legal proxies.
(i) In respect of all information referred to in paragraphs (a) through (h) above, (i) electronic media containing such information, (ii) the computer processing data necessary for the Requesting Stockholder to make use of such information on electronic media, and (iii) a hard copy printout of such information for verification purposes (all information referred to in paragraphs (a) through (i), collectively, the “Stocklist Materials”).
The Requesting Stockholder demands that all Stocklist Materials be made available to the Requesting Stockholder or its designees, as of the most recent date available, no later than the fifth business day after the date hereof, and as of any record or determination date established in connection with a special meeting, action by consent or other authorization or referendum of Allergan’s shareholders, no later than the fifth business day after notice thereof to the Company. In addition, the Requesting Stockholder demands that, up through and including the date of the Company’s annual meeting to elect directors in 2015, any updates, changes, modifications, corrections, additions or deletions to any of the Stocklist Materials (including, for the avoidance of doubt, DTC Daily Participant Lists) be immediately furnished to the Requesting Stockholder as requested by the Requesting Stockholder or as such updates, modifications, additions or deletions become available to the Company, its agents or other representatives.
The purpose of this demand is to enable the Requesting Stockholder to communicate with fellow stockholders of the Company on matters relating to their mutual interest as stockholders, such as those with respect to specific policies, actions, and affairs of the Company, including, without limitation, the solicitation of views regarding Valeant Pharmaceuticals International Inc.’s proposal to acquire the Company and the solicitation of proxies or written consents in connection with any election of the Requesting Stockholder’s nominees to the board of directors of the Company or any proposals submitted by the Requesting Stockholder for consideration at any annual or special meeting or in any action by written consent.
The Requesting Stockholder has designated and authorized, as its agent, to conduct the inspection and copying of the Stocklist Materials requested herein: (i) Kirkland & Ellis LLP, Sullivan & Cromwell LLP and their respective partners, associates, employees and other persons designated by Kirkland & Ellis LLP or Sullivan & Cromwell LLP; and (ii) D.F. King & Co., Inc., Mackenzie Partners Inc. and their respective employees or other persons designated by D.F. King & Co., Inc. or Mackenzie Partners Inc., in each case of (i) and (ii), acting together, singly or in combination. A copy of the power-of-attorney granted to such designees is attached hereto as Exhibit C. The Requesting Stockholder agrees to keep the Stocklist Materials confidential pursuant to the confidentiality agreement attached hereto as Exhibit D.
The Requesting Stockholder will bear the reasonable costs incurred by the Company in producing the records requested, which charge may not exceed the estimated cost of production, reproduction and transmission of such records.
Pursuant to Section 220 of the DGCL, the Company is required to respond to this demand within five business days of the date hereof. Accordingly, please advise the Requesting Stockholder’s counsel at Kirkland & Ellis LLP, Stephen Fraidin, Esq., at 212.446.4840 and Richard M. Brand, Esq., at 212.446.4840, as promptly as practicable within the requisite timeframe, when and where the Stocklist Materials will be made available to the Requesting Stockholder or its designees. If the Company contends that this demand is incomplete or is otherwise deficient in any respect, please notify the Requesting Stockholder immediately in writing, with a copy to (i) Stephen Fraidin, Esq., Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, telephone number 212.446.4840, facsimile number 212.446.4900, and email firstname.lastname@example.org; and (ii) Richard M. Brand, Esq., Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, telephone number 212.446.4840, facsimile number 212.446.4900, and email email@example.com, setting forth the facts or law that the Company contends support its position and specifying any additional information believed to be required. In the absence of such prompt notice, the Requesting Stockholder will assume that the Company agrees that this demand complies in all respects with the requirements of the DGCL.
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|Very truly yours,|
|PS Fund 1, LLC|
|By:||Pershing Square Capital Management, L.P.|
|its Investment Manager|
|By:||PS Management GP, LLC, its General Partner|
|By:||/s/ William A. Ackman|
|William A. Ackman, Managing Member|
STATE OF NEW YORK )
COUNTY OF NEW YORK )
I, William A. Ackman, am the Chief Executive Officer of Pershing Square Capital Management, L.P., a Delaware limited partnership (“PSCM”), and the managing member of PS Management GP, LLC. PSCM is the manager of PS Fund 1, LLC (“PS Fund 1”), the owner of 28,878,538 shares of common stock, par value $0.01 per share, of Allergan, Inc., a Delaware corporation. I am authorized to execute the foregoing demand by PSCM on behalf of PS Fund 1. The facts, statements and representations contained in the foregoing demand are true and correct under penalty of perjury to the best of my knowledge and belief.
|/s/ William A. Ackman|
|William A. Ackman|
Sworn to and subscribed before me this 12th day of May, 2014.
My Commission Expires: July 16, 2015
/s/ Bethany Yates Norvell
Evidence of Beneficial Ownership
|UBS Securities LLC
Prime Brokerage Services
1285 Avenue of the Americas
New York, NY 10019
May 12, 2014
To whom it may concern:
This is to confirm that UBS Investment Bank (“UBS”) currently serves as a Prime Broker for PS Fund 1 LLC. As is typical of a prime brokerage relationship, the Funds can terminate their relationship with UBS at any time or appoint other prime brokers.
As of May 9, 2014, PS Fund 1 LLC held 28,878,538 shares of Allergan Inc (cusip 018490102) as UBS.
Please feel free to contact me should you have any questions.
UBS Prime Brokerage Service
This letter is specifically limited to the information provided herein relating to each of the Fund’s prime brokerage accounts with UBS as of the date specified. The Fund may also be involved in other transactions with UBS (including with Prime Services) outside of the prime brokerage relationship. The information contained above is provided in good faith by UBS for informational purposes only. The data presented is static and does not take into account unsettled trades or other client activity that could effect balance information on a particular date. This information does not reflect any liabilities or client may have at other broker/dealers. Vendor pricing feeds used to aggregate the account value could contain errors that would effect the overall computation of a client’s balance. UBS shall not be held liable for any decisions, transactions, or other business undertaken in reliance of this information.
UBS Securities LLC is a subsidiary of UBS AG. UBS Investment Bank is a business group of UBS AG.
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