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Mergers and Acquisitions - Research Paper Example

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Course Institution Date Mergers and Acquisitions Omnicare, Inc. v. NCS Healthcare, Inc.818 A.2d 914 (Del. 2003). Facts: In 1999 NCS had some economic struggles which culminated in early 2001 with NCS unable to discharge around US$350 million in accumulated debt…
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Download file to see previous pages Over the ensuing months, Omnicare proposed a number of transactions involving the sale of NCS’s assets under bankruptcy that would not include paying off a majority of NCS’s debt. Moreover, Omnicare’s proposal did not include relief for NCS’s stockholders. Genesis was approached by the committee formed by the subordinated note holders in early 2002 and Genesis offered a deal aside from the bankruptcy that included a discharge of NCS’s senior debts and a payment to NCS’s stockholders of approximately US$24 million. Genesis’s offer had a number of exclusive arrangements and all indications were that any deal would have to be “locked up” so that a higher bid would not prevail (Omnicare, Inc. v. NCS Healthcare, Inc.818 A.2d 914 (Del. 2003)). When Omnicare became aware of Genesis’s offer, Omnicare improved its offer and withdrew the initial requirement for bankruptcy and also offered to discharge NCS’s debts and shareholder payments. NCS responded by using Omnicare’s offer to get Genesis to improve its offer. This tactic worked as Genesis improved its offer, but demanded that the offer be approved within 24 hours otherwise it would be withdrawn. NCS’s board of directors recommended accepting Genesis’s offer and just before a shareholders’ meeting to accept the offer by Genesis, Omnicare improved its bid so that its offer exceeded the offer made by Genesis. The merger arrangement however did not make provision for an out, the NCS/Genesis merger was locked in. As a result, Omnicare the minority shareholders of NCS took the matter to court with a view to enjoining the NCS/Genesis merger. Legal Issues: The primary legal issue was the validity and enforceability of a lock-in or no shop clause in a merger and acquisition agreement. The question for the court was whether or not a no shop agreement could be enforced so that NCS could not consider the offers and bids for merger by Omnicare. It has been previously held in some jurisdictions in the US that a no shop clause was valid when it allowed a board to legally bind the organization to a merger arrangement so that it may not negotiate or accept an offer from another organization until such time as the shareholders considered the original offer (Jewel Cos., Inc. v. Pay Less Drug Stores Northwest, Inc.; 741 F.2d 1555 (9th Cir. 1994)). The Delaware Supreme court however, considered the no shop clause in light of the fiduciary duty of the board of directors to obtain the best deal possible and to re-evaluate its decisions. In this regard, the main legal issue for the Delaware Supreme court was not so much a no shop clause, but the significance of a fiduciary out clause in negotiating mergers and acquisitions. Court Holding; Consequence; Damages; Who Won and Who Lost: The Chancery Court of Delaware declined the application by NCS’s minority shareholders and Omnicare to enjoin the merger by NCS and Genesis. The Chancery Court held that the business judgment rule functioned to prevent indiscriminate challenging of board of directors’ decisions. There is a general presumption that directors act in good faith and are well-informed when making a decision and do so in the best interest of the company. Any party who alleges otherwise must prove that the presumption cannot be made. The Chancery Court of Delaware also ruled that the no shop clause was consistent with the law of Delaware although it could be scrutinized by the judiciary. Such scrutiny will usually only occur when the board has taken defensive action in ...Download file to see next pagesRead More
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