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

On May 17, 2015, Ascena Retail Group, Inc. agreed to acquire women's specialty retail fashion brand owner ANN INC. in a cash-and-stock transaction with an enterprise value of approximately $2.0 billion at signing. ANN stockholders will receive cash and stock for their shares, subject to adjustment such that the maximum number of shares issues will not exceed 19.99% of Ascena common stock at closing (which allows Ascena to avoid a vote of its own stockholders under NASDAQ Rule 5635). On closing, Target stockholders will own approximately 16% of Ascena's common stock. ANN must pay to Ascena a break-up fee of $48.270 million (2.41% of the deal value) if the merger agreement is terminated under certain circumstances, including if ANN changes its recommendation for the merger or enters into a definitive agreement for a superior proposal. If ANN fails to obtain stockholder approval, it must reimburse Ascena its transaction-related expenses up to $5 million. Ascena does not have to pay a reverse break-up fee under any circumstances. While liability for breach of the merger agreement or fraud survives termination, payment of the break-up fee relieves ANN from further liability to Ascena under the merger agreement. On the same day as signing of the merger agreement, ANN's board of directors amended its bylaws to include a Delaware forum selection provision.

Also on May 17, 2015, Brookfield Asset Management Inc. agreed to acquire GrafTech International Ltd. in an all-cash tender offer valued at approximately $540 million. Combined with the parties' earlier entry into an Investment Agreement that provides for GrafTech's issuance of preferred stock to Brookfield, the transaction has a total value of approximately $690 million. The merger agreement provides GrafTech with a 35-day go-shop period to solicit competing proposals, which may extended by 15 days if it receives a proposal that it determines is or could reasonably be expected to lead to a superior proposal, as well as a two-tier break-up fee ($7.5 million, or 1.39% of the deal value under the merger agreement, and $20 million, or 3.70% of the deal value under the merger agreement) that turns on the acceptance of a superior proposal during the go-shop period or after it.

Two weeks earlier, the parties entered into an Investment Agreement under which Brookfield will acquire $150 million of GrafTech's 7% convertible preferred shares in a private offering, including Series A shares and Series B convertible into shares representing approximately 19.9% and approximately 2% of GrafTech common stock, respectively. Under the Investment Agreement, Brookfield received the right to designate two additional directors to GrafTech's board of directors.

The closing of the tender offer is conditioned upon (i) approval of the merger by the Committee on Foreign Investment in the US (CFIUS), unless the parties reasonably determine that CFIUS clearance is unnecessary because it was obtained for the transaction covered by the Investment Agreement, (ii) the submission by GrafTech of a notice to the US Department of State Directorate of Defense Trade Controls at least 60 days before the acceptance of shares in the tender offer as required under International Traffic in Arms Regulations (ITAR), (iii) if Brookfield's acquisition of GrafTech common stock in the tender offer is equal to or greater than the minimum tender condition but less than the minimum merger closing condition (as described below), the execution by the parties of an Amended and Restated Stockholder Rights Agreement, and (iv) a minimum tender condition of 30% of GrafTech common stock, including any shares owned by Brookfield plus all shares of GrafTech common stock issuable on conversion of the GrafTech convertible preferred stock issued under the Investment Agreement. Assuming that the convertible preferred stock is issued before the expiration of the tender offer, satisfaction of the minimum tender condition would require the tender of approximately 15% of GrafTech common stock. Neither party is obligated to close the merger unless, as of the closing of the tender offer, the GrafTech common stock tendered, including the GrafTech common stock issuable on conversion of GrafTech convertible preferred stock purchased under the Investment Agreement represents at least 80% of GrafTech common stock.

If the number of shares tendered and accepted for payment in the tender offer satisfies the minimum tender condition of 30% but is less than the minimum merger closing condition of 80%, the parties will execute an Amended and Restated Stockholder Rights Agreement, which will amend and restate the Stockholder Rights Agreement that the parties agreed to enter into on closing of the Investment Agreement. The Amended and Restated Stockholder Rights Agreement sets out a scheme for the designation by Brookfield of directors to GrafTech's board, depending on Brookfield's level of ownership of GrafTech common stock as converted based on Brookfield's acquisition of convertible preferred stock under the Investment Agreement. The Amended and Restated Stockholder Rights Agreement also provides Brookfield with preemptive rights with respect to equity offerings to maintain its proportionate ownership, as well as restrictions on selling the preferred stock to competitors, key suppliers or vendors of GrafTech and that transactions between GrafTech and Brookfield would require approval by a majority of GrafTech directors not appointed by Brookfield or holders of a majority of GrafTech common stock excluding shares held by Brookfield.

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