See the full post for extensive analysis of the deal structure
I sincerely hope that the European Union’s reluctance was a surprise to Sun — because if not, the company took quite a gamble on Oracle’s commitment to the acquisition. This is particularly true in light of Sun’s downturn, which provides an easy excuse to at least try to renegotiate the price.
However, the inclusion in the agreement of a bar on required Oracle dispositions indicates Sun may have known that antitrust clearance was a problem at the time of the agreement. At this point though, the debate is academic — and hopefully for Sun, Oracle really, really wants to acquire the company. Still, Sun would not have had to throw itself on Oracle’s mercy had it negotiated a better deal for itself to begin with. This is a lesson other deal lawyers should remember.