Auction Theory and Standstills: Dealing with Friends and Foes in a Sale of Corporate Control

Abstract

A fundamental issue in Delaware mergers & acquisitions (M&A) law is the extent to which a target company’s board of directors may restrict a sales process to extract value from bidders and grant a “winning bidder” certain deal protections to protect a transaction from being overbid. Standstill agreements are one such form of deal protection. Standstills prevent bidders from making or announcing a bid for the target without the target’s consent both during the sales process and for a period after the sales process is completed and the target has executed an agreement with a “winning bidder.” Recent 2011 and 2012 Delaware Court of Chancery rulings have placed a new spotlight on the use of standstill agreements in M&A deals and specifically in change of control transactions. In particular, these cases highlight the restrictiveness of some standstills and open up discussion as to how restrictive a standstill may be without violating a target company board of directors’ duty to maximize stockholder value.

This Article makes a unique contribution because it is the first paper to apply auction theory in critiquing and evaluating the need for standstills in M&A transactions. Auction theory utilizes economics to design optimal bid-ding procedures and revenue enhancing auctions. The application of auction theory to standstills is particularly well suited as the execution of a standstill is often cited as resulting in increased value during the sales process. Using auction theory and recent Delaware case law as a foundation, this Article provides a new framework for the use of standstills. It argues that to the extent standstills provide an entry into the due diligence and general sales processes, standstills may help to enhance value. Moreover, the promise of standstill restrictions continuing post-signing may aid in incentivizing bidders to submit their highest offers during the pre-signing sale process. But the use of more restrictive standstills like those in which a bidder agrees not to request a waiver and a target agrees in advance not to waive a standstill (or Don’t Ask, Don’t Waive (DADW) standstills) should turn on whether strategic or financial bidders are involved in the process as well as the amount of pre-signing shopping of the target engaged in by the board. This Article provides a new framework for dealmakers and for courts taking into con-sideration those factors. Among other things, this framework suggests that if dealmakers are to continue their use of DADW standstills, that they be paired with a minimal fiduciary out and with a staggered termination fee.  

Keywords: standstill, Revlon, Unocal, fiduciary duties, confidentiality agreement, Don't Ask, Don't Waive standstills, superior offer, superior proposal, overbid, hostile offer, fiduciary out, board of directors, informational vacuum, waiver, change of control, termination fees, auction

JEL Classification: K22, K12, G34