As the takeover battle progresses, some complications seems to have arisen in the deal documentation. This is primarily due to the hurried negotiations that preceded the announcement of the deal. Here’s an extract from the New York Times’ Deal Professor:
“A careful read of its guaranty agreement with Bear Stearns, part of its deal to acquire the troubled investment bank, suggests that the agreement may be much broader than JPMorgan intended. This apparent oversight likely played a role in JPMorgan’s decision over the weekend to consider raising its offer for Bear.All this points to the fact that the renegotiation of the price may not have occurred only to appease opposing shareholders, but also reportedly to overcome some of the “mistakes” that sprung up in the deal documentation.
Under the merger agreement, if Bear’s shareholders vote down the takeover deal for a year, Bear can terminate the agreement. This we already knew. But it also appears that, in such circumstances, JPMorgan’s guarantee to backstop Bear’s liabilities stays in place — forever.
That is, even after the rejection from Bear’s shareholders, JPMorgan’s guarantee would continue to apply to any liabilities Bear accrued up to the termination of the agreement. This provision could allow Bear’s shareholders to seek a higher bid while still forcing JPMorgan to honor its guarantee.
The guarantee would not apply to liabilities accrued after termination of the agreement. Still, as The New York Times reported Monday, the agreement may have been much broader than JPMorgan and its law firm, Wachtell Lipton Rosen & Katz, meant it to be.
According to The Times, one participant in the negotiations described James Dimon, JPMorgan’s chief executive, as being “apoplectic” as he sought to have the sentence modified.”