This session considered tax issues in due diligence, the tax benefits of various M&A structures, and looked at key tax provisions in acquisition agreements. 

The participants Lee Morlock, Esq., Partner at Kirkland & Ellis; Gene McCluskey, Vice President, Tax at CF Industries; and Michelle Baxter, Senior Director, Tax Planning & International Tax at Fortune Brands Home & Security offered perspective on recent tax developments that may impact transaction planning and explored the increasing use of...

Companies that regularly pursue moderately-sized transactions generally outperformed peers, according to research conducted by the authors of this paper, which studied overall shareholder returns versus transformational deals.

The research showed the most successful companies are placing “multiple bets” and being “nimble with [their capital]” while making several acquisitions even...

This session explored a range of innovative deal terms and methods for navigating regulatory challenges in domestic and cross-border deals. This session provided guidance on M&A provisions that anticipate protectionist views, antitrust challenges, and other regulatory reviews.

Chuck Webb, Senior Antitrust Attorney at FedEx; Gil Ohana, Senior Director, Antitrust and Competition at Cisco Systems; and Brendan Bowes, Associate General Counsel, Corporate, Securities and M&A at Archer Daniels Midland Company considered approaches for incorporating the risk of political and regulatory uncertainty into deal terms including 'best efforts' requirements, negotiating prospective antitrust remedies, and other...

Recent developments are pushing disclosure-only settlements, commonly known as “mootness fee” settlements, into the forefront of M&A lawsuits.  Dealmakers are faced with an unclear decision on the benefits associated with these types of settlements that have no certified class, no class notice, and very limited judicial oversight of the fee arrangement between adversarial parties. 

Alarmingly, a recent study found the percent of federal M&A cases resulted in mootness fees was 60% with the typical fee ranging from $50,000 to $300,000.  For now, defendant corporations appear to have a roadmap to preventing mootness fee settlements from...

This discussion examined deal structures and terms that may be employed to bridge gaps between buyers and sellers. 

Brett Shawn, Senior Vice President, Assistant General Counsel at Warburg Pincus; Michael Wolf, Vice President, Deputy General Counsel at Baxter International; and Elizabeth Donley, Partner at Hogan Lovells considered various forms of consideration and pricing formulations, including working capital and "locked-box" adjustments, fixed price/exchange ratio collars, valuation and earnout mechanisms, and other practical considerations relevant to M&A negotiations and...

Pro-sandbagging clauses are becoming an increasingly negotiated term in acquisition agreements designed to indemnify informed buyers.

A “pro-sandbagging” clause is a provision in the acquisition agreement preserving a buyer’s ability to bring a claim post-transaction even if they had knowledge of the issue prior to the closing.  This paper discusses the buyer’s and seller’s arguments regarding pro-sandbagging provisions in M&A agreements including...

This discussion considered the environment for spin-off transactions and offered specific guidance on the disposal process and common deal terms including transition services agreements, the sufficiency of assets and financial statements representations, and the structure of escrow or holdback mechanisms to cover the seller’s indemnification obligations.

During this discussion, Sergio Letelier, Vice President, Deputy General Counsel - Corporate, Securities and M&A at Hewlett Packard Enterprise; Chandradev Mehta, Director, Strategic Planning and Transactions at LyondellBasell; and Kevin Freeman, Chief Counsel, Securities & Transactions at Tenneco considered the environment for spin-off transactions and offered specific guidance on...

A lack of value-creation, regulatory hurdles, and political issues are the most common causes of abandoned mergers and acquisitions transactions, according to this report, which recommends approaches for deal transparency, mutual bargaining, and active political landscape monitoring.  The study analyzed 265 canceled deals, generally finding that the larger the transaction, the more likely it was to fail. 

While executives have limited control over some factors, M&A professionals can head off abandoned deal processes by improving.....

This session provided guidance on M&A provisions that anticipate protectionist views, antitrust challenges, and other regulatory outcomes.

The participants – Stacy Frazier, Executive Counsel, Competition Law and Policy at GE and Michael Hartman, Assistant General Counsel for AT&T - commented on models for incorporating the risk of political and regulatory uncertainty into deal terms through…

The authors of this paper discuss five key takeaways that inform M&A practitioners how the Delaware Chancery Court will interpret certain express contractual agreements between M&A parties.

This case serves as a reminder that the Court generally will strictly enforce clear and unambiguous terms of a merger agreement with scarce exceptions.