Biomet Tender Offer Succeeds

The tender offer for Biomet closed last night at midnight.  According to the acquiring private equity consortium press release, 82.85% of Biomet’s outstanding shares were tendered in the offer.  The deal had had a 75% minimum tender condition due to the vagaries of Indiana law where Biomet is organized and which requires a 75% vote to approve a merger.  The Biomet merger agreement had a top-up option -- a provision which permits the consortium to now purchase, at a price per share equal to the offer price, a number of newly issued shares that will constitute 90.0005% of the total shares then outstanding.  Accordingly, the acquiring group will exercise this option to bring their holdings up to 90% of the company and initiate a short-form merger under Indiana law.  This will spare the consortium the shareholder vote and proxy requirements of a long-form merger permitting the deal to close today rather than in another month or two.  Practitioners should take note.