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guaranteed. That is also true for the shares tendered by the
Charities. In sum, the existence of withdrawal rights with
respect to both petitioners and the Charities did not enhance the
Charities' ability to vitiate the intention of shareholders who
had tendered or guaranteed a majority of AHC stock and in effect
approved the merger agreement.
The fact that the tender offer was conditioned on DC
Acquisition’s acquiring and owning at least 85 percent of the AHC
stock upon consummation of the tender offer (minimum tender
condition) also does not change our conclusion. The minimum
tender condition could be waived by DC Acquisition in its sole
discretion and, therefore, would not have prevented DC
Acquisition from proceeding unilaterally with consummation of the
merger by the close of business on August 31, 1988. The minimum
tender condition had no bearing on the ability of the Charities
to affect the course of events initiated on July 28, 1988, with
the merger agreement and crystallized on August 31, 1988, with
“approval” of the merger agreement by shareholders owning a
majority of AHC stock. Also, the limited significance of the
minimum tender condition from the perspective of DC Acquisition
and its impact on our determination of whether there existed a
fixed right to income at the time of the gifts is addressed in
our discussion regarding the material change condition of the
tender offer, infra.
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