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Optionality in Merger Agreements


Brian J. M. Quinn


BC Law School

2010

Delaware Journal of Corporate Law (DJCL), Vol. 35, No. 3, 2010

Abstract:     
The credit crisis of 2008 and the subsequent collapse of a number of high-profile acquisition transactions put a spotlight on contracting practices that embedded optionality into merger agreements by way of the reverse termination fee and its attendant triggers. This article examines whether reverse termination fees are a symmetrical response to the seller's judicially mandated fiduciary termination right and whether such fees represent an efficient transactional term. A series of Delaware cases over the last decade limited the degree to which buyers could rely on deal protection measures in merger agreements to prevent a seller from accepting a superior second bid resulting in a judicially-created fiduciary put. Where courts require seller termination rights, it is possible that buyers might attempt to negotiate symmetrical "optionality" for buyers elsewhere in the merger agreement. This article investigates whether the termination triggers that accompany reverse termination fees are that symmetrical response. Using a sample of 644 acquisitions from 2003 through 2008, which includes 105 transactions where strategic buyers negotiated a reverse termination fee, this article provides an empirical account of the use of reverse termination fees by strategic buyers, including the first taxonomy of reverse termination fee triggers. This article concludes first that reverse termination fee triggers are not a symmetrical response to the judicially mandated seller's fiduciary termination rights. Second, to the extent reverse termination rights mimic termination rights in size, they may be inefficient terms. The results of this study provide some guidance to courts as they are asked to assess the viability of reverse termination fees and the degree of optionality embedded in the modern merger agreement.

Number of Pages in PDF File: 40

Keywords: Delaware, Journal, Corporate, Law, Acquisition Transactions, Optionality, Merger Agreements, Reverse Termination Fee, Fiduciary, Termination Right

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Date posted: January 18, 2011  

Suggested Citation

Quinn, Brian J. M., Optionality in Merger Agreements (2010). Delaware Journal of Corporate Law (DJCL), Vol. 35, No. 3, 2010. Available at SSRN: http://ssrn.com/abstract=1742555

Contact Information

Brian J. M. Quinn (Contact Author)
BC Law School ( email )
885 Centre Street
Newton, MA 02459-1163
United States

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