What higher reverse #breakup fees mean for #healthcare sector #antitrust risk?
- Target companies are seeking more and higher reverse breakup fees in case their takeover is hampered by US antitrust enforcement
- This uptick in financial safeguards for a possible failed deal reflects the more aggressive stance by the #ftc and #doj under the #bidenadministration
- 2/3 #deals announced under #biden Administration’s #ftc have buyer #termination fee
- Average amount nearly x2 to 4.76% of deal value from 2.83%
The majority of healthcare-sector deals are now reviewed by the FTC, and 58% of #mergers announced since #LinaKhan was sworn in as chair (06/21) included a reverse breakup fee, compared to 25% of deals that were announced in the c.900 days before that. This analysis is based on deals involving US-listed companies – mainly in #pharma and #biotech (announced since Jan 2019 with a deal value of USD 3bn + and a total value of USD 11.5trn incl the largest Bristol Myers Squibb acquisition of Celgene (USD 87.7bn). In 7 out of 28 mergers announced between Jan. 2019 and 15/06/21, a reverse breakup fee was agreed between the parties. 21 out of 36 deals announced between 16/06/21 and 13/12/23 had a buyer termination fee, often with specific reference to regulatory approvals.
The average share of the fee compared to purchase price nearly doubled from 2.83% before the current administration’s FTC, to 4.76% since then.
An even stronger effect can be seen since the FTC’s unprecedented challenge of Amgen USD 28bn acquisition of Horizon in May this year: 86% of deals include a reverse termination fee, with a 5.38% price tag.
One deal most clearly exemplifies the stark difference in a pre-and-post-Biden Administration regulatory review: UnitedHealth Group #takeover of Change Healthcare. That deal was announced back in Jan. 2021 and with no reverse break-up fee. The DoJ challenged the deal in Feb 2022, three months after Assistant Attorney General #JonathanKanter was confirmed, and, as a result, the companies extended their merger agreement through the end of the year and added a reverse termination fee of USD 650m, working out to 4.8% of deal value. AbbVie recent announcements of acquisitions of ImmunoGen, Inc. and Cerevel Therapeutics show how high the possible penalty can be for a buyer if a deal falls through. In the ImmunoGen, Inc. deal, the reverse breakup fee is 6.84% of the USD 9.6bn purchase price. In the Cerevel Therapeutics deal, AbbVie promised to pay 7.51% of the USD 8.7bn value if it does not consummate for regulatory reasons.
The FTC this week challenged Sanofi acquisition of an exclusive licence for Maze Therapeutics’ therapy in development for treatment of Pompe disease. The companies have abandoned the deal. At the same time, the FTC approved Pfizer USD 43bn acquisition of Seagen (reverse breakup fee of USD 2.2bn - 5.19% of the deal value).
Natixis Corporate & Investment Banking #healthcaresector #m&a #biotech #antitrust #bigpharma
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