![]() That data is received by Bardy via the cloud (where it is also stored) and then interpreted at one of Bardy’s independent diagnostic testing facilities (“IDTF”) by trained ECG technicians who create a proprietary report for review by the patient’s physician. The CAM patch is a single-use, bandage-size patch designed to be secured to a patient’s chest and worn for up to 14 days, during which it records electrocardiographic data to detect heart arrhythmias. In January 2020, Hillrom, a publicly-held, global medical technology company, expressed interest in acquiring Bardy, a startup medical device company that, then and now, had a single product offering on the market: a long-term ambulatory electrocardiogram (“AECG”) device (known alternatively as a longterm Holter device, or “LTH”) called the Carnation Ambulatory Monitor (“CAM”) patch. 1 indolence or sabotage, to facilitate the demise of the transaction so that it could avoid the deal it struck. 30, 2021) (noting the buyer suffered from “buyer’s remorse”) Hexion Specialty Chems., Inc. The usual refrain from sellers in “busted deal” cases is that the buyer developed an acute case of “buyer’s remorse” after signing and then sought to exploit contractual exits to avoid closing.2 The court often joins the “buyer’s remorse” chorus when it sees evidence that the buyer actually worked, through deliberate 1 I refer throughout this Opinion to “Hillrom” in the singular, as Merger Sub is a shell entity created by Hillrom solely to effectuate the transaction. According to Hillrom, it was excused from closing because, between signing and closing, Bardy suffered a Material Adverse Effect (“MAE”) as defined in the Agreement. Soon after, Hillrom gave notice to Bardy that it would not close the Merger. (“Bardy” or the “Company”), a medical device startup, by merger (the “Merger”).1 After the parties signed the Agreement, but before closing, the Medicare program, through an authorized agent, announced that the rates Medicare would pay for Bardy’s signature medical device would be dramatically reduced. (“Merger Sub”), committed in an Agreement and Plan of Merger (the “Agreement”) to acquire Bardy Diagnostics, Inc. (“Hillrom”) and its merger subsidiary, Barcelona Merger Sub, Inc. ![]() Marooney, Esquire, Alvin Lee, Esquire, Kenneth Fowler, Esquire, Julia Barrett, Esquire and Matthew Bush, Esquire of King & Spalding LLP, New York, New York, Attorneys for Defendants/Counterclaim Plaintiffs Hill-Rom, Inc. Sims, Esquire of Potter Anderson & Corroon LLP, Wilmington, Delaware and Richard T. ![]() Berger, Esquire and Steven Guggenheim, Esquire of Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, California, Attorneys for Plaintiff/Counterclaim Defendant Bardy Diagnostics, Inc. ![]() Gagas, Esquire of Wilson Sonsini Goodrich & Rosati P.C., Wilmington, Delaware and David J. 2021-0175-JRS MEMORANDUM OPINION Date Submitted: JDate Decided: JBrad D. HILL-ROM, INC., an Indiana corporation, and BARCELONA MERGER SUB, INC., a Delaware corporation, Defendants/ Counterclaim Plaintiffs. IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE BARDY DIAGNOSTICS, INC., a Delaware corporation, Plaintiff/ Counterclaim Defendant, v. ![]()
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