If you are still using "no-shop" provisions in your merger agreement, it may be time for a refresher course:
"Andrew Sorkin’s column in Sunday’s NY Times discusses the growing trend of including "go shop" provisions in recent merger agreements. Here is an excerpt from that column (and a sample provision and commentary from the "Truth on the Market" Blog):
"Instead of the typical "no shop" term that has long been standard issue in merger deals — to keep sellers from soliciting higher offers after reaching an agreement to be sold — some boards of directors are now taking the opposite tack. Sellers are cutting deals with buyers that allow them to actively seek higher offers after reaching agreement. So, in the case of this week’s deal, Kerzner International, owner of the Atlantis resort, and its advisers literally began an auction for Kerzner the day it agreed to be sold."
Link: DealLawyers Blog.
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