In the latest non-development in the Dollar Thrifty takeover saga Avis has yet to enter into a merger agreement with Dollar Thrifty and has not commenced its promised exchange offer for Dollar Thrifty.
Ronald Barusch, who spent more than 30 years as an M&A practitioner at Skadden, Arps, Slate, Meagher & Flom LLP before retiring this year, offered some insights on where the saga might go from here in a column in the Wall Street Journal.
Barusch's first thought is that Hertz will have to wait for its $50 million breakup fee. Hertz only will be paid if Dollar Thrifty signs a merger agreement or recommends an offer. That probably won't happen before antitrust issues with the Avis bid are resolved. The agreement or recommendation must happen within 12 months, and these issues can take a long time to resolve. This now means a significant portion of Avis' antitrust risk has been shifted to Hertz, says Barusch.
Barusch contends that Avis dodged the reverse breakup fee bullet. Avis spent weeks resisting any fee payable for failing to clear antitrust hurdles. When it looked like that might ruin its deal, Avis offered a $20 million reverse breakup fee - compared to Hertz's $50 million fee - at the last minute, but only if Dollar Thrifty signed a merger agreement. Since there is no merger agreement, there will be no fee, at least until the parties have a lot more visibility on the antitrust issues.
In addition, Barusch notes, this deal is likely to go into "radio silence." An exchange offer requires almost every move to be disclosed. However, with no exchange offer, almost no disclosure is required until a material agreement is signed. Dollar Thrifty and Avis recognized that by saying they would not make further announcements except as required by law.
Barusch asks: Did Avis breach a contract by not commencing an exchange offer? He believes Avis will probably be sued over this issue. But what are the damages at this point? Here are the words in one of Avis' press releases: "If Dollar Thrifty stockholders do not approve the Hertz transaction .... Avis Budget will continue to actively pursue the acquisition of Dollar Thrifty, including commencing an exchange offer at our recent offer price no later than 10 business days after the meeting."
But a prior press release containing Avis' promise, could make it illusory: "We will keep such offer open until the end of the year while we continue to pursue antitrust clearance."