Top-Up Options and Short Form Mergers

Mark A. Morton, John F. Grossbauer

In the past year, tender offers once again have captured the attention (and review) of the Delaware courts.  This renewed interest has resulted in clarification of the law as applied to tender offers and, consequently, opened the door for tender offerors to pursue certain transactions with more confidence.  In In re Siliconix Inc. Shareholders Litig., the Court of Chancery held that a controlling stockholder who initiates an unnegotiated tender offer will have no duty to offer a fair price, absent evidence that material information concerning its tender offer has been withheld or misrepresented or that the offer is coercive in some significant way.

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