Document: Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, C.A. No. 5589–VCP (Del. Ch. Feb. 22, 2013)
The Delaware Court of Chancery rejected plaintiffs’ claim that the surviving corporation to a merger breached an anti-assignment clause in a licensing agreement when it agreed to be acquired in a reverse triangular merger without plaintiffs’ consent. In the merger, a wholly owned subsidiary of the acquiror merged with and into the corporation with the corporation surviving the merger as a wholly owned subsidiary of the acquiror. The contract at issue specifically prohibited assignments “by operation of law.” The Court stated that there was no transfer of the intellectual properties rights at issue by operation of law in connection with the reverse triangular merger because the surviving corporation to a merger is the same legal entity as the original contracting party.