Series 79 practice questionhardDeal Protections
An investment banker is advising a target board on evaluating whether a break-up fee of 5.5% of equity value is appropriate. Which of the following best describes the likely advice?
- AThe fee is standard and should be accepted without modification
- BThe fee exceeds typical market practice and may be challenged as preclusive by courts, potentially deterring competing bidders✓ Correct answer
- CThe fee is too low and should be increased to at least 8% to adequately protect the acquirer
- DBreak-up fee percentages are irrelevant; only the absolute dollar amount matters
Explanation
Why B — The fee exceeds typical market practice and may be challenged as preclusive by courts, potentially deterring competing bidders
Break-up fees typically range from 2-4% of equity value in public company transactions. A fee of 5.5% significantly exceeds market norms and may be viewed by Delaware courts as preclusive because it could deter other potential bidders from making competing offers. Under the Revlon and Unocal standards, courts scrutinize deal protection measures to ensure they do not unreasonably prevent the target's board from obtaining the best price for shareholders. An unreasonably high break-up fee may be struck down as a breach of fiduciary duty.
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