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It is the job of the directors to squeeze a buyer for as much as possible in a friendly deal. But that becomes harder if the buyer expects to pay more to some or all shareholders after the deal is signed.

The Journal reported last week that three funds, including Fortress Investment Group, had acquired shares of Dole Food for which they had instituted an appraisal proceeding in Delaware. Other investors are on the same track regarding the Dell Inc. buyout.

In an appraisal action, shareholders ask the court to award them the “fair value” of their shares, which they claim is more than the price in the acquisition agreement. Shareholders take some risk in seeking appraisal because the court could decide to pay them less than the deal price. Plus they need to wait until the end of the proceeding to get paid. Yet the trend seems to be that more activist funds are more frequently seeking the appraisal remedy.

In other deals, like Dell, investors successfully threatened to vote down a deal unless buyers increase the price they’ve agreed to pay.

As activist shareholders succeed in wringing more out of buyers than they originally agreed to pay through such approaches, buyers will either come to expect that they may have to pay more than in the deal they initially ink (and hold something back in their negotiations with the board) or look for mechanisms to discourage activists from a retrade.

Since directors will still be looking for the highest price, we can expect to see them agree to provisions in deals that make it more difficult for the activists to squeeze the buyers in return for getting what the directors view as a favorable price. For example, it is already becoming more common for deals to include a breakup fee payable to buyers for a “naked no vote”—where shareholders vote down a deal even though there is no competing acquisition proposal. In recent deals such a fee has been relatively small: If such a fee is payable, it generally ranges from a limited amount of expense reimbursement to around 1% of the value of the transaction.

If activists continue the trend of fighting friendly deals, we may see those fees rise in an effort to discourage the trend, since shareholders indirectly bear the cost of those fees

In addition, buyers may develop innovative ways of discouraging activists from buying into a company after a deal is announced. For example, a buyer might propose a sliding scale of naked no vote fees. A buyer might request a higher fee if a large proportion of the “no” votes comes from shareholders who buy into the deal after its announcement. These would likely be investors who bought the shares for the specific purpose of squeezing the buyer for more. That would require developing a system in which shareholders who vote no indicate when they acquired their shares or finding some other way to track shareholders. Although that could be complicated, it might be doable, and could give the impression the board focused on discouraging negative newcomers to the stock.

Another alternative–borrowing a bit  from the principles behind a poison pill– might be for a relatively high naked vote fee to be payable to a disappointed buyer, while including a rebate from that fee for shareholders in the stock prior to the announcement of the deal.  That would force the late-coming activists to effectively bear the costs of the fee.

Addressing the risk to buyers of appraisal proceedings could be even more complex, but probably could be done. For example, a buyer could try to shift all or part of the risk of paying more to some shareholders in an appraisal to the selling shareholders. This could be done by holding back or escrowing some portion of the purchase price and using this fund to pay any incremental price to the dissenting shareholders arising out of the appraisal proceeding so the selling shareholders—instead of the buyer–bear much of the risk of the appraisal action.

The buyer could also agree to pay the non-dissenting shareholders its savings if the court determines the fair price is below the deal price. Effectively making non-dissenting shareholders bear the risks and benefits of an appraisal process should not affect the legal standards applied to appraisals. Nevertheless, it would be hard for a judge not to be influenced if his decision on valuation will affect not the buyer, but the public shareholders who agreed to take the deal price. At the very least it could make appraisal seem more risky to an activist shareholder, who could fear a judge wouldn’t want to penalize the deal’s public shareholders.

Buyers are always looking for more deal certainty in acquiring a public company. There is already a risk that a bid will be topped. And shareholders can always vote no. But buyers will not want to sign up for the risk that activist shareholders buy into a company to hold the buyer up. Something needs to give if this trend continues.

Send questions, comments or story ideas to Dealpolitik@gmail.com. Follow Ron on Twitter @DealPolitik.