The Canadian firm is infamous for its mini-tender offers, which it also recently made at Fox and Intel. The SEC and companies targeted by TRC Capital say that mini-tenders prey on unsophisticated investors, using official-looking documents to lure them into making a bad deal. “They count on investors jumping to the conclusion that the price offered includes the premium usually present in larger, traditional tender offers,” the SEC says, even though it may be below the trading price. Since TRC seeks less than 5% of a company’s shares, it doesn’t have to register its offer with the SEC — although it still can’t commit outright fraud. In Disney‘s case, the company says this morning that last week TRC offered $61 a share for 2M shares, equal to 0.1% of the total. The company says the offer is $3 below the trading price on October 8, the day before TRC launched its mini-tender. It adds that there are a lot of conditions on TRC’s proposal including “the ability of TRC to finance the offer.” The firm also can terminate it without buying any shares. Disney wants investors to know that it “is not associated in any way with TRC, the mini-tender offer or the offer documentation.” Those who have already swallowed TRC’s bait can withdraw if they send a written notice to the firm before November 7 when its offer expires.
Here’s Disney’s release:
BURBANK, Calif., October 15, 2013 ─ The Walt Disney Company (NYSE: DIS) has been notified of an unsolicited “mini-tender offer” made by TRC Capital Corporation (TRC) to Disney shareowners to purchase up to 2,000,000 shares of Disney common stock at a price of $61.00 per share. TRC’s offer is for approximately one tenth of one percent of our outstanding shares and the offer price is $3.00 per share, or approximately 4.7 percent, below Disney’s closing price of $64.00 on October 8, 2013, the day before commencement of the offer.
Disney recommends that shareowners not tender their shares because the offer price is below Disney’s current share price, and urges them to consult with their financial advisor and exercise caution with respect to TRC’s offer. Disney notes that the offer is subject to the satisfaction of a substantial number of conditions, including the absence of any decrease in the market price of Disney shares from the price on the date of the offer and the ability of TRC to finance the offer. If the market price of Disney shares falls or TRC cannot obtain financing, TRC is permitted to terminate the offer and not purchase any shares.
The Securities and Exchange Commission (SEC) has issued an investor alert regarding mini-tender offers, noting that in making the offers at below-market prices, “bidders are hoping that they will catch investors off guard if the investors do not compare the offer price to the current market price.” The SEC’s investor alert can be found on the SEC Web site at http://www.sec.gov/investor/pubs/minitend.htm.
According to the SEC, mini-tender offers are for not more than 5 percent of a company’s stock and typically do not provide the same investor protections required of larger tender offers, including the filing of disclosure documents with the SEC and other procedural protections mandated by U.S. securities laws.
Disney does not endorse this unsolicited mini-tender offer, and Disney is not associated in any way with TRC, the mini-tender offer or the offer documentation. Disney shareowners who already have tendered their shares are advised that they may withdraw their shares by providing the written notice described in the TRC offering documents prior to the expiration of the offer, currently scheduled for 12:01 a.m. eastern time on Thursday, November 7, 2013.
Disney encourages brokers and dealers, as well as other market participants, to review the SEC’s letter regarding broker-dealer mini-tender offer dissemination and disclosures at http://www.sec.gov/divisions/marketreg/minitenders/sia072401.htm; and the NASD Notice to Members 99-53, issued in July 1999, regarding guidance to members forwarding mini-tender offers to their customers, which can be found at http://www.finra.org/web/groups/industry/@ip/@reg/@notice/documents/notices/p004221.pdf.
Disney requests that a copy of this press release be included with all distributions of materials relating to TRC Capital’s mini-tender offer.