Kevin Miller was quoted in a Law360 article discussing the “don’t-ask, don’t waive” provisions under debate in two recent rulings in Delaware Chancery Court. These provisions have the potential to adversely impact auctions, preventing bidders that have signed confidentiality agreements containing a “don’t-ask don’t waive” provision from coming in with a topping bid after an auction has closed and barring them from asking a target’s board for permission to do so.
According to Miller, boards of target companies believe “‘don’t-ask, don’t waive’ provisions help them run an effective auction and ensure that bidders ‘put their best foot forward.’”
“If a buyer knows they can rebid after the auction is over, there’s less of an incentive for them to bid their highest price,” he said.