Six agreements for US public company acquisitions with a deal value of $100 million or more were filed this past week.

On May 20, 2015, CVS Health Corporation agreed to acquire long term care facility pharmacy provider Omnicare, Inc. in an all-cash transaction with a total enterprise value of approximately $12.7 billion, including approximately $2.3 billion in debt. CVS has obtained $13 billion in debt financing from Barclays and expects to put in place permanent financing in the form of senior notes and/or term loans before closing of the merger. CVS may terminate the merger agreement if Omnicare or any of its subsidiaries is debarred or excluded from participation in Medicare, Medicaid or any other federal or state healthcare program. Unlike the merger agreement at the heart of the Delaware Supreme Court's 2003 Omnicare decision, Omnicare's agreement with CVS contains a fiduciary out for Omnicare's board to change its recommendation to accept a superior proposal or to otherwise satisfy its fiduciary duties. In addition, while Omnicare has agreed to a "force the vote" covenant that requires it to hold the stockholder meeting in spite of a change of its board's recommendation, it would not have to take efforts to solicit adoption of the agreement by the stockholders in that situation (compare Section 5.3(a) of the 2002 agreement, which explicitly rules out this exception). However, Omnicare must pay to CVS a break-up fee of $350 million (2.76% of the deal value) if it exercises its fiduciary out. In spite of the large debt-financing commitment, CVS is not obligated to pay a reverse break-up fee under any circumstances and is subject to an unconditional remedy of specific performance. While liability for a willful or intentional breach of the merger agreement survives termination, receipt of the break-up fee is CVS's sole and exclusive monetary remedy under the merger agreement, except in the case of fraud.

On May 21, 2015, NRD Capital agreed to acquire restaurant operator Frisch's Restaurants, Inc. in an all-cash transaction valued at $175 million. A fund affiliated with NRD agreed to provide equity financing and an unidentified third party agreed to provide the rest of the funds necessary to complete the transaction. NRD is not obligated to close the merger if any financing source has terminated its financing commitment on the grounds that any representation or warranty made by NRD as to the condition, quality, sufficiency or title of any real property assets of Frisch's is not true and complete in all material respects, or as a result of any other lien on the real property assets of Frisch's that was not disclosed in its disclosure schedules. The merger agreement also provides for a dissenting-shares closing condition under which NRD is not obligated to close the merger unless holders of no more than 10% of Frisch's common stock have dissented and demanded appraisal of their shares. Furthermore, NRD does not have to close the merger until Frisch's provides a complete and accurate statement of third-party transaction costs incurred in connection with the merger, including but not limited to financial advisors, investment bankers, attorneys and accountants. In spite of the conditionality to its obligation to close, NRD does not have to pay a reverse break-up fee under any circumstances.

On May 21, 2015, Vanguard Natural Resources, LLC agreed to acquire oil and natural gas property developer Eagle Rock Energy Partners, L.P. in an all-equity transaction valued at $474 million at signing (excluding $140 million of net debt assumed as of March 31, 2015), under which each Eagle Rock common unit will be converted into the right to receive 0.185 Vanguard common units. For purposes of the break-up fee payable by Eagle Rock for entering into a "tail period" transaction within 12 months of termination, the merger agreement distinguishes the size of the fee on the basis of the event of termination. If the merger agreement is terminated due to a breach by Eagle Rock or failure to obtain unitholder approval, Eagle Rock must pay a break-up fee of $20 million (4.22% of the equity value) to Vanguard. However, if the event of termination is failure to close by the drop-dead date, then the break-up fee for a tail transaction is only $10 million (2.11% of the equity value). Vanguard, on the other hand, must pay to Eagle Rock the full $20 million fee if the merger agreement is terminated because Vanguard fails to obtain its own unitholder approval for the transaction.

On May 25, 2015, Hot Topic, Inc., a portfolio company of Sycamore Partners, agreed to acquire Geeknet, Inc., the parent company of online retailers ThinkGeek and ThinkGeek Solutions, in an all-cash tender offer with a total equity value of approximately $122 million, including $37 million of cash and cash equivalents as of March 31, 2015. The parties elected to complete the merger under Section 251(h) of the DGCL, which eliminates the stockholder-approval requirement. Geeknet must pay to Hot Topic a break-up fee of $3,661,461 (3.00% of the deal value) if the merger agreement is terminated under certain circumstances, including if Geeknet changes its recommendation, materially breaches the no-shop or enters into a superior proposal. On May 27, 2015, Geeknet announced that it had received an offer of $20.00 per share from an unidentified "strategic buyer," compared to Hot Topic's offer of $17.50 per share.

On May 26, 2015, electronic music digital entertainment and live events producer SFX Entertainment, Inc. agreed to be taken private by an affiliate of Robert F.X. Sillerman, SFX's Chairman and Chief Executive Officer, in a transaction valued at $774 million. SFX stockholders will receive $5.25 per share in cash, and certain qualifying stockholders may to elect to retain stock in the surviving company in lieu of cash, subject to certain conditions and limitations. Mr. Sillerman and his affiliates own approximately 37.4% of SFX common stock. Under the merger agreement, SFX has a 45-day go-shop period to solicit competing proposals, as well as a two-tier break-up fee – $7.8 million (approximately 1.0% of the total deal value or 1.5% of the equity value) or $15.5 million (approximately 2.0% of the total deal value or 3.0% of the equity value) – that turns on the acceptance of a superior proposal during the go-shop period or after it. The buyers are also subject to a two-tier reverse break-up fee of either $7.8 million (approximately 1.0% of the total deal value or 1.5% of the equity value) or $31 million (approximately 4.0% of the total deal value or 6.0% of the equity value). The lower fee is payable if the merger agreement is terminated because the buyer fails to close the merger after all closing conditions are satisfied or fails to timely deliver financing commitments to SFX after SFX's request, and the higher fee is payable if the merger agreement is terminated after the buyer's delivery of the financing commitments. Concurrently with the merger agreement, Mr. Sillerman and his affiliates entered into a voting agreement under which they agreed to vote their shares in favor of the merger as well as in favor any superior proposal with a value of at least 2.5% more per share than the merger consideration. However, if SFX intends to terminate the merger agreement to enter into a definitive agreement for a superior proposal, it must enter into arrangements for the termination or replacement of all outstanding guarantees and other credit support obligations provided or posted by Mr. Sillerman or his affiliates, the release of the Mr. Sillerman and his affiliates from any and all support obligations under those credit supports and the reimbursement of Mr. Sillerman and his affiliates for all of the costs and expenses incurred with respect to those credit supports.

On May 27, 2015, CA, Inc. agreed to acquired software and services solutions provider Rally Software Development Corp. in an all-cash tender offer valued at approximately $480 million, net of cash acquired. The parties elected to complete the merger under Section 251(h) of the DGCL, which eliminates the stockholder-approval requirement. Rally must pay to CA a break-up fee of $17.4 million (3.63% of the deal value) if the merger agreement is terminated under certain circumstances, including if Rally changes its recommendation, materially breaches the no-shop or enters into a definitive agreement for a competing acquisition proposal or a superior proposal or any agreement requiring Rally to abandon, terminate or breach its obligations under the merger agreement. CA is not obligated to pay a reverse break-up fee under any circumstances. Liability for fraud or willful or intentional breach survives termination of the merger agreement.

As of publication of this update, the merger agreements for the Charter Communications/Time Warner Cable and Avago Technologies/Broadcom transactions had yet to be filed.

For additional public merger agreement summaries, see What's Market.