-NCS shares dropped in value and in 2001, invited Omnicare to discuss with it possible transactions.
-Independent committee was formed to discuss possible transaction options for NCS, wanted to obtain the highest possible value in any transaction.
-In 2001, Genesis proposed a transaction to acquire NCS, and provided an exclusivity agreement. Wanted to preclude bids from Omnicare. Omnicare had outbid Genesis at the last minute on another acquisition.
-Omnicare faxed NCS a proposal, NCS used that fax to negotiation with Genesis.
-Genesis improved offer, but stated that transaction had to be approved by next day or would terminate.
“Outstanding voting power would be required by Genesis to enter into stockholder voting arrangements with the signing of the agreement and would agree to vote their shares in favor of the agreement.
-Omnicare had a superior proposal
-Board management decision to enter into and recommend a merger transaction can become final only when ownership action is taken by a vote of stockholders.
-Court looks to see if the defensive measures are either preclusive or coercive.
-Here the court said it was both.
The court holds that the merger agreement is invalid and unenforceable.
-Certainty itself has value.
-Coercion here was meaningless, because controlling votes were already cast.
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