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 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…

Most often, a Reverse Morris Trust transaction involves publicly traded companies, referred to as Parent and RMT Partner, whereby Parent contributes a to-be-divested business to a new or existing holding company, referred to as Spinco. Parent then distributes all of Spinco’s equity to its stockholders.

The paper provides a comprehensive discussion of Reverse Morris Trust tax requirements, valuation and economics, and corporate/securities law issues, which includes...

This session considered approaches for appropriately and proportionately engaging the Board in the organization's inorganic growth strategy, from acquisitions to minority investments and joint ventures.

Joseph Tedeschi, Head of M&A Legal (former) at Citigroup, Bob Zapata, General Counsel of Corporate Strategy and Development at TIAA, and Frank Jaehnert, Member of the Board of Directors of Briggs, Stratton, Nordson, and Itron, and Member of the Advisory Board of National Material gave consideration to the optimal lines of authority between the Board, special committees, and management throughout the M&A process including…

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 conversation explored the unique considerations Special Committees and management face when pursuing an unwilling or reluctant acquisition target. 

The discussion with Sergio Letelier, Deputy General Counsel – Corporate, Securities, and M&A at Hewlett Packard Enterprise and Margot Miller, Global Legal Director of Commercial and Mergers and Acquisitions at Anheuser-Busch InBev considered a range of approaches from a “bear hug” offer to a fully hostile proxy contest. Variations in both domestic and international M&A practice were considered as well as....  

This paper discusses the rise of “220 demands” in connection with M&A transactions and additional requirements imposed by Delaware courts in response.

The authors discuss various shareholder options available in other states compared to Delaware and looks methods for heading off 220 demands for emails and other communications between officers and directors if the corporation has....

Structuring joint ventures and minority investments entails a difficult balance of interests, finances, and governance between cooperative parties.

To effectively complement a more traditional M&A strategy, these transactions need to create a partnership culture while incorporating appropriate...

Considering and preparing diversified exit strategies is increasingly pertinent in M&A transactions due to heightened market volatility and other sources of financial uncertainty. Exiting an investment can be fraught with uncertainty, requiring M&A professionals to prepare numerous exit strategies for even the most viable and thriving businesses.

In this paper, the authors suggest practitioners pursue a “dual-track process” when preparing exit strategies. Preparing for both an initial public offering and running a private M&A process, often via an auction, should...

This discussion looked at acquisitions and investments in innovative companies when the objective is primarily to access enabling capabilities or disruptive business models powered by technology and analytics. 

The participants - Rohit Dave, Head of M&A at WeWork, Arindam Guha, Corporate Development, M&A, Investments and Strategy at IBM, and Lenny El Guindy, Corporate M&A at Deere & Company - considered the unique challenges associated with deals where much of the value is embedded in future growth, algorithms, intellectual property including in-process R&D, intangible assets, and human capital including founders and management teams.

By ‘steering’ the company into an allegedly unfair acquisition by a private equity firm that promised to retain him post-acquisition, the target CEO breached his fiduciary duties, found the Delaware Court of Chancery in In re Xura, Inc. Stockholder Litigation.

By denying the target CEO’s motion to dismiss claims that he breached his fiduciary duties, the court provided an instructive case for understanding...

In this interview Publisher William Jefferson Black sits down with Andrew Gratz, Associate General Counsel at LyondellBasell, who manages the legal team that supports the multinational public-company's acquisitions, divestitures and other strategic transactions globally. 

LyondellBasell was formed through a merger in late 2007, followed by a 15-month chapter 11 restructuring.  Today the company has a $30B+ market cap and a position as one of the largest plastics, chemicals and refining companies in the world.

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.