purposes of relying on Rule 13d-1(b). By failing to make a timely filing, Perry violated Section13(d) of the Exchange Act and Rule 13d-1 thereunder.
, a New York corporation headquartered in New York, New York, is aregistered investment adviser that provides investment advice and asset management services tofive private investment funds. Perry has been registered with the Commission as an investmentadviser since April 2000. Perry operates its investment advisory business in the United Statesprincipally through Perry Capital, LLC (“Perry Capital”). As of March 30, 2009, Perry hadapproximately $8.8 billion under management.
The Mylan/King Merger
6. On July 26, 2004, Mylan, one of the nation’s largest manufacturers of genericpharmaceutical products, announced an agreement to acquire King, an established brand-namepharmaceutical company. The agreement provided that King shareholders would receive 0.9shares of Mylan common stock for each outstanding share of King stock, which represented a 61%premium for King shareholders as of the date of the announcement. Pursuant to the terms of theagreement, consummation of the merger was subject to the approval of both Mylan and Kingshareholders.7. Perry had invested in King intermittently from October 2001, and beginning inMarch 2004 had built a significant position in King. As of the close of business on July 23, 2004,Perry had accumulated a total of 4,337,900 shares of King, at an average cost of $15.08 per share.Because King’s share price declined between March and July 2004, Perry sustained a paper loss of $20,413,440. On the day of the merger announcement, King’s stock price went up almost 25%and Perry could have sold its King shares then and recouped a portion of its trading losses.8. Following the merger announcement, Perry engaged in “merger arbitrage.” Perrytried to maximize its potential profits by converting its King position into a “risk-arbitrage spread”position through the short-sale of a corresponding number of Mylan shares. An arbitrage spreadopportunity is created when, as a result of a merger announcement, the securities of the acquiringcompany (the “acquirer”) trade at a higher adjusted price than the shares of the company it seeks topurchase (the “target”). The adjusted price refers to the stock price of the acquirer adjusted forhow many shares of the acquirer the target’s shares will convert to in the stock-for-stock merger.This pre-completion spread between the adjusted price of the acquirer’s shares and the price of thetarget’s shares reflects market uncertainty about deal consummation,
., whether the premiumoffered to the target company will be realized. Thus, the pre-completion spread widens if there areindications that the merger will not be completed. Conversely, the pre-completion spread narrowsas confidence grows that the merger will be completed. A transaction designed to take advantageof an arbitrage spread opportunity, called a risk-arbitrage spread trade, is established by acquiringshares of the target and selling short a corresponding number of shares of the acquirer. When themerger is completed, the shares of the target become shares of the acquirer, and these shares can beused by the investor to cover its short-sales of the acquirer’s stock. Through these risk-arbitrage3