While a single trustee appears sufficient to avoid Omnicare`s ban, in 13 other transactions, a trustee was one of two (or in some cases three) mechanisms that reduced bidding obligations under the applicable support agreement. In nine of these 13 transactions, the main recurring additional facility was a form of “mitigation” of tendering obligations (p.B. tendering obligations were reduced to 34.99% for a specific event other than the termination of the merger agreement, completely suspended for the period of modification of the board`s recommendation or completely terminated if the board`s recommendation was changed). For the remaining four transactions (and two of the nine Ratchet transactions), the additional facility was an explicit cap on the actions subject to the support agreement, as the parties did not submit all their actions to the support agreement. The limits are generally between 31.99% and 39.99%, with a transaction at 14.9%. However, the latter cap was not related to Omnicare`s concerns, but to the previous restriction in Section 251(h) for transactions involving interested shareholders [4], which, as mentioned above, has since been lifted. Rethink what constitutes a merger consideration. Requiring target shareholders to issue a bond-filled letter of transmittal as a condition of receiving their merger consideration is not the only technique for resolving the gap between the structure of the merger and the imposition of obligations on the acquirer to target shareholders after closing. Another solution is to try to incorporate these obligations into the merger agreement itself and thus into the merger consideration itself. In other words, the right to counterpart to the concentration goes hand in hand with the restrictions imposed by the commitments. The Court examines this concept in detail and concludes that this approach is justified in certain cases.
Although the Court does not provide very specific guidance, the following principles emerge: tension between the structure of the merger and the private obligations of the target shareholders in relation to mergers and acquisitions. The effectiveness of the structure of the merger agreement, which is capable of ousting the uninitiated without their consent or participation, has a tension with the acquisition of the usual protection after the closing granted to a purchaser of a private target.