After reading the press release from Genesis HealthCare this morning announcing a revised merger agreement with Formation Capital and JER Partners for a deal price of $69.35 per share and a $40 million break-up fee, Fillmore Capital Partners dashed off its own statement criticizing the Genesis board for agreeing to the higher break-up, which had the “effect of prematurely terminating this auction for a second time.”  Fillmore had already agreed “to pay” the previous $15 million termination fee, so the $40 million really represents a $25 million increase, or about an additional $1.25 per share cost to Fillmore if it still wants to play.  So this is telling us that “if” Fillmore would go higher with the former $15 million break-up fee, it would top out at something less than $70.60 per share (Formation’s $69.35 offer plus additional break-up fee of $1.25 per share), because by the tone of the statement today, it has no plans to get near that number.  The bottom line is that the bidding process was coming to an end in terms of pricing, as we doubt that either buyer was prepared to go above $70 per share, but now Fillmore is in the same position Formation Capital was when it lost the Beverly Enterprises acquisition to Fillmore.  Sometimes, what goes around, comes around.  But in this case it sounds like Fillmore wants shareholders to vote no, which is ridiculous when most of them were thrilled when the bidding was still in the $65.00 to $67.00 range.  We, and every analyst on Wall Street, thought that $63 per share was a full value offer for Genesis, and that no bidders would want to top that.  What we don’t understand is why Fillmore waited so long to jump back in, which was probably its biggest strategic mistake, giving the timing advantage to Formation.  Perhaps it had more to do with its Beverly assets than we thought.