Six agreements for US public company acquisitions with a deal value of $100 million or more were filed this past week. Four are structured as tender offers with back-end mergers governed by DGCL Section 251(h). One of the six deals is an all-stock transaction; the others are all-cash. Two of the acquisitions are with foreign buyers and another two are with financial buyers (one a private equity firm and the other a diversified holding company).

On September 27, 2014, Encana Corporation agreed to acquire oil and gas exploration and production company Athlon Energy Inc. in an all-cash tender offer valued at $7.1 billion, including $1.15 billion in assumed debt. Athlon's senior management, as well as funds affiliated with Apollo Global Management, have agreed to tender their respective shares, which on a combined basis represent approximately 35.8% of Athlon shares on a fully diluted basis.

On September 27, 2014, HomeStreet, Inc. agreed to acquire Simplicity Bancorp, Inc. in an all-stock transaction valued at $128 million at signing. The exchange ratio is subject to a collar adjustment if HomeStreet's average stock price for a certain period before closing falls outside of a specified range. If HomeStreet's average stock price falls below the specified minimum, Simplicity can choose to terminate the merger agreement, unless HomeStreet increases the exchange ratio as set out in the merger agreement. HomeStreet intends to apply to the California Department of Business Oversight (the CDBO) to register its common stock using a fairness hearing that would determine whether the merger and the merger consideration are fair, just and equitable, which will allow HomeStreet to issue common stock under an exemption from Securities Act registration requirements. This process is available if either the acquirer or target company is incorporated in California or, as in this transaction, has a meaningful presence in California. For more information about fairness-hearing process, see Article, M&A in California: Key Issues and Considerations: California Permit and Hearing Process. The merger is conditioned on the CDBO granting this permission.

On September 27, 2014, Vista Equity Partners agreed to acquire infrastructure and business intelligence software provider TIBCO Software Inc. in an all-cash transaction valued at $4.3 billion, including the assumption of net debt. The merger agreement does not provide for the affirmative payment by Vista of a reverse break-up fee, but it does cap Vista's maximum aggregate liability for breach at $275.8 million (6.41% of the total deal value). This is over two-and-a-third times the size of TIBCO's corresponding break-up fee and maximum liability of $116.7 million (2.71% of the total deal value).

On September 28, 2014, Daiichi Sankyo Company, Limited agreed to acquire biopharmaceutical company Ambit Biosciences Corporation in an all-cash tender offer with an upfront value of $315 million, plus up to an additional $85 million in contingent value rights (CVRs). The CVRs entitle Ambit Biosciences stockholders to receive up to an additional $4.50/share if certain commercialization-related milestones are achieved. The merger agreement also provides that in circumstances where a break-up fee is payable by Ambit for entering into a 12-month "tail transaction" following a termination event triggered by a breach, the fee is only payable if the proposed consideration for the tail transaction is equal to or greater than the total value of Daiichi Sankyo's tender offer, including the value of the CVRs.

On September 29, 2014, JAB Holding Company agreed to acquire bagel-chain operator Einstein Noah Restaurant Group, Inc. in an all-cash tender offer valued at $374 million. JAB is an affiliate of the private equity firm Joh. A. Benckiser Group, which also own Peet's Coffee and Tea, Caribou Coffee and a stake in D.E. Master Blenders, a Dutch coffee and tea company. The parties disclosed that BDT Capital Partners, a Chicago-based merchant bank, will be a minority investor in the deal.

On September 30, 2014, News Corporation agreed to acquire online real estate services provider Move, Inc. in an all-cash tender offer valued at $950 million (net of cash acquired). A subsidiary of Move is currently a party to an operating agreement with a subsidiary of the National Association of Realtors (NAR) under which, among other things, Move has the exclusive and perpetual right to operate realtor.com, the official site of the NAR. The tender offer is conditioned on the absence of certain disputes relating to that operating agreement. In addition, the merger agreement's definition of a material adverse effect explicitly includes the valid termination of the operating agreement or the issuance of a final, nonappealable order that the operating agreement is then terminable by the NAR.

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