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Drawing from the circumstances of the closely followed bidding war between Novo Nordisk and Pfizer to acquire Metsera, this White & Case article discusses how boards should assess competing proposals that are alike in amount and composition, but differ in structure, timing and probability of consummation due to regulatory risk. The alert summarizes the facts of the Metsera saga as follows:

In the fourth quarter of 2025, Novo Nordisk A/S (“Novo”) intervened as an interloper in the acquisition of Metsera, Inc. (“Metsera”), a clinical-stage developer of obesity and metabolic therapies that had entered into a merger agreement to be acquired by Pfizer Inc. (“Pfizer”). Novo offered a higher headline price than Pfizer, together with a structure designed to neutralize the greater antitrust risk its offer carried. The structure was less novel than it first appeared. Novo ultimately abandoned the proposal after the staff of the Federal Trade Commission (the “FTC”) signaled that it was inclined to recommend a challenge and Pfizer commenced actions in two courts seeking to block the transaction. Pfizer raised its offer in successive steps until it matched Novo’s final proposal in both amount and composition. Once the headline figures converged, Metsera’s board concluded that Novo’s structure carried unacceptable legal and regulatory risk relative to the deal certainty Pfizer offered.

Here are a few key takeaways from the memo:

– Antitrust risk is a substantive component of deal value, and where competing bids converge on headline price, it tends to become the decisive variable. Nor is the resulting valuation discount confined to antitrust: the same arithmetic applies to any approval on which closing depends, whether the relevant regulator supervises insurance, banking, communications or energy.

– Although the final Pfizer and Novo prices were identical, the bids were not equal in value. The Novo proposal was worth what it promised only if the upfront structure survived legal challenge and the back-end merger cleared antitrust review, and the antitrust objections put both in doubt. A board weighing that uncertainty could reasonably conclude that Pfizer’s nearly certain package was worth more after adjusting for risk.

– Novo’s non-voting preferred structure allowed roughly three-quarters of the proposed consideration (valuing a contingent value right, or CVR, at its maximum), and half of Metsera’s equity, to change hands before any antitrust review. The HSR rules, which disregard any transaction or device employed to avoid a filing obligation and test reportability against the substance of the transaction as a whole, undermined the certainty the structure was designed to offer. A filing obligation may therefore exist notwithstanding the structure’s form.

– The regulatory-likelihood prong of the contractual “superior proposal” standard calls for a genuine probabilistic assessment, and for care in the sequencing and framing of the board’s findings rather than a nominal acknowledgment that clearance is uncertain.

The memo provides a detailed illustration of that probabilistic assessment. It also has a thorough discussion about how Delaware courts might have analyzed the agreement with Novo, had Metsera gone in that direction, and shares some practical tips for navigating competing bids that are primarily distinguished by regulatory risk. There’s a lot here, and it’s a practical read that’s worth your time.

– Meredith Ervine