The Delaware Court of Chancery declined to preliminarily enjoin a stockholder vote on the proposed merger between NYSE Euronext ("NYSE") and IntercontinentalExchange, Inc. ("ICE"). The court nonetheless criticized a provision in the merger agreement restricting the ability of NYSE's board of directors to change its recommendation if a competing bid arose for a portion of NYSE's operations. The court stated that if a partial bid had been made, the NYSE board of directors would have been restricted from changing its recommendation in favor of the ICE merger under a provision contained in the merger agreement. The provision at issue only allowed the NYSE Board of directors to change its recommendation where an alternative proposal emerged that was (i) unsolicited, (ii) determined to be a superior and (iii) involved a sale of 100% of NYSE's assets or stock. The provision, however, could not support an injunction because no competing bid was made that the NYSE board of directors would have been precluded from considering.
In re NYSE Euronext S'holders Litig., C.A. No. 8136-CS (Del. Ch. May 10, 2013).