Mergers and Acquisitions

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Financing Provisions in Acquisition Agreements

Los Angeles partner Linda Curtis and Century City associate Melissa Barshop are the authors of "Financing Provisions in Acquisition Agreements" [PDF] published in the Summer 2011 issue of California Business Law Practitioner.

Client Alert | July 1, 2011

The Government of India Has Notified the Merger Control Provisions of the Competition Act, 2002

Please note that the jurisdictional thresholds set out in the client alert below refer to the assets "or" turnover of entities involved in the combination.  Accordingly, if the acquirer and target, or surviving entity or group, as applicable, meet either the specified asset threshold or the specified turnover threshold, the regulations will apply.  Also, an enterprise whose control, shares, voting rights or assets are being acquired and that has assets of not more than Rs.

Client Alert | April 28, 2011

Delaware Court of Chancery Rules That License Agreement Provision Prohibiting Assignment by Operation of Law May Apply to a Reverse Triangular Merger

On April 8, 2011, the Delaware Court of Chancery, in denying a motion to dismiss, ruled in Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A.

Client Alert | April 26, 2011

Protectionism and Paternalism at the UK Takeover Panel — Part II

Printable PDFThe Panel Holds Its Ground -- An Analysis of Some of the Key Proposals   Introduction -- The Panel Stands FirmIn late November 2010, we published an article on the policy statement of the UK Panel on Takeovers and Mergers (Panel) which set out the ground work for changes to the rules governing the conduct of public takeovers in the UK as embodied in the UK Code on Takeovers and Mergers (Code).

Client Alert | March 29, 2011

Germany to Ban “Stealth Takeover” Strategies

On February 11, 2011, the German Parliament approved the bill for the so-called "Investor Protection and Capital Markets Improvement Act" (Anlegerschutz- und Funktionsverbesserungsgesetz) which is part of the ongoing legislative activity responding to the financial crisis.

Client Alert | February 18, 2011

Delaware Chancery Court Upholds Airgas Poison Pill

Printable PDFOn February 15, 2011, the Delaware Court of Chancery issued an important opinion upholding the continued vitality of the poison pill as an appropriate defensive measure for companies faced with takeover proposals deemed inadequate by the target's board of directors.  Chancellor Chandler's 158 page decision in Air Products & Chemicals, Inc.

Client Alert | February 17, 2011

E-Discovery Trends: Delaware Chancery Court Adopts Preservation Guidelines for Electronically Stored Information

In a significant development for those who may litigate in the Delaware Court of Chancery, that court has issued guidelines regarding preservation of electronically stored information in cases before it.

Client Alert | January 28, 2011

Evaluating Mergers Between Potential Competitors Under the New Horizontal Merger Guidelines

The issuance of new horizontal merger guidelines is the most significant merger enforcement achievement of the FTC and the U.S.

Client Alert | December 22, 2010

Delaware Supreme Court Reverses Court of Chancery Opinion Concerning Corporations with Staggered Boards

On November 23, 2010, in Airgas, Inc. v. Air Products & Chemicals, Inc., --- A.3d ----, 2010 WL 4734305 (Del. Nov. 23, 2010), the Delaware Supreme Court reversed last month's decision of the Court of Chancery, Airgas, Inc.

Client Alert | November 29, 2010

Protectionism and Paternalism at the UK Panel on Takeovers and Mergers

On 1 June 2010 the UK Panel on Takeovers and Mergers (Panel), issued a 'Green' Consultation Paper on the Review of Certain Aspects of the Regulation of Takeover Bids in the UK (Green Paper).

Client Alert | November 24, 2010

Delaware Court of Chancery Issues Important Opinion for Corporations with Staggered Boards

On October 8, 2010, the Court of Chancery of Delaware issued an important opinion, Airgas, Inc. v. Air Products & Chemicals, Inc. (Del. Ch. Oct. 8, 2010), with significant implications for public corporations with staggered boards.

Client Alert | October 12, 2010

Minority Freeze-Out Transactions Revisited

New York partner Eduardo Gallardo and associate Jessica Lau are the authors of "Minority Freeze-Out Transactions Revisited" [PDF] published online by Law360 on September 7, 2010 at

Client Alert | September 7, 2010

U.S. Department of Justice and Federal Trade Commission Issue Revised Horizontal Merger Guidelines

On August 19, 2010, the U.S. Department of Justice ("DOJ") and Federal Trade Commission ("FTC") issued revised Horizontal Merger Guidelines ("2010 Guidelines").  The release of the 2010 Guidelines marks the first major changes to the Guidelines in over 18 years; they will replace the 1992 Guidelines (which were subsequently amended in 1997).  A copy of the 2010 Guidelines is available on the DOJ's website at and on the FTC's website at

Client Alert | August 24, 2010

U.S. Federal Trade Commission Proposes Significant Changes to HSR Filing Form Requirements and Instructions

On August 13, 2010, the Federal Trade Commission (FTC) issued a notice of proposed rulemaking that would make literally dozens of changes in the specific requirements for completion of a Notification and Report Form (the Form) for premerger notification of mergers and acquisitions under the Hart-Scott-Rodino (HSR) Act (15 U.S.C.

Client Alert | August 19, 2010

Delaware Court of Chancery Issues Important Poison Pill Opinion

On August 11, 2010, the Delaware Court of Chancery issued an important opinion in the area of stockholder rights plans, or poison pills.  Vice Chancellor Strine's opinion in Yucaipa American Alliance Fund II, L.P.

Client Alert | August 17, 2010

Delaware Chancery Court Addresses Standard for Evaluating Controlling Stockholder Tender Offers

In a recent ruling with important implications for parties structuring minority freeze-out transactions, Vice Chancellor Travis Laster of the Delaware Court of Chancery embraced a unified standard for reviewing such transactions, regardless of whether they are effected by means of a negotiated merger or a unilateral tender offer.  In In re CNX Gas Corp.

Client Alert | June 4, 2010

Fiduciary Duties In Delaware LLC Agreements

Century City Jonathan K. Layne and Los Angeles associate Benyamin S. Ross are the authors of "Fiduciary Duties In Delaware LLC Agreements" [PDF] publised online by Law360 on March 31, 2010 at

Client Alert | March 31, 2010

Delaware Court of Chancery Validates Use of a Net Operating Loss Poison Pill

On February 26, 2010, the Court of Chancery of the State of Delaware issued an important opinion validating the use of a net operating loss (NOL) shareholder rights plan or poison pill.  The case, Selectica, Inc.

Client Alert | March 3, 2010

Poison Pills Revisited

During the last decade, activist shareholders and corporate governance groups have been fairly successful in pressuring companies to voluntarily surrender a number of anti-takeover defenses, most notably the use of staggered boards and shareholder rights plans (also referred to as "poison pills").

Client Alert | January 28, 2010

Important Third Circuit Decision Regarding Break-Up Fees in Section 363 Bankruptcy Sales

On January 15, 2010, the Third Circuit Court of Appeals issued a decision affecting the approval of break-up fees in connection with Section 363 bankruptcy sales.

Client Alert | January 27, 2010

German-Law GmbH Share Transfers or Pledges — The End of the Road for the Notarization in Switzerland?

A recent court judgment passed by the District Court (Landgericht) Frankfurt in October 2009 may signal the end of a long-since established German corporate and financing practice, the notarization of limited liability company share transfers or share pledges in Switzerland.

Client Alert | January 12, 2010

Germany and Austria: Broad Measures

Munich partner Philip Martinius and associate Jan Querfurth are the authors of "Germany and Austria: Broad Measures" [PDF] published in the June 25, 2009 issue of Legal Week.

Client Alert | June 25, 2009

Delaware Court Stresses the Importance of Executing Employment and Non-Competition Agreements with Key Target Employees

Common issues confronting acquirors involve retaining the target company’s key employees and protecting against the loss of business to defecting employees.  A recent Delaware Court of Chancery decision addressed issues faced by an acquiror, where a group of the target company’s employees plotted to leave the target company and launch a competing business prior to the acquisition’s close.  The court’s decision in Ivize of Milwaukee, LLC v. Compex Litigation Support, LLC will likely cause acquirors to more aggressively seek and obtain employment and/or non-competition agreements from key target employees, particularly where the success of the acquisition depends upon a relatively small number of key employees. The Case In early 2007, Compex Legal Services (&qu

Client Alert | June 15, 2009

Delaware Court of Chancery Rules on “Poison Puts”

Current market conditions have produced an uptick in unsolicited merger and acquisition activity, as well as shareholder activist campaigns.  However, many unsolicited bidders and activists have been forced to rethink their strategies by the presence of change-in-control put provisions in the documents governing their targets’ publicly traded debt.  These provisions--commonly referred to as "poison puts"--are not an uncommon feature of publicly traded debt and other finance instruments and give bondholders and other creditors the right to call the issuer’s debt upon the occurrence of certain fundamental change-in-control events.  Such events often include a forced change in the composition of a majority of the issuer’s board (a so-called "continuing dire

Client Alert | June 8, 2009

Undone Deals

Mergers and acquisitions have been hit hard by the downturn, with Thomson Reuters reporting that the ratio of "withdrawn deals" to completed deals in 2008 was at an all-time high - higher even than during the tech meltdown of 2001.The U.S.

Client Alert | May 19, 2009


The economic downturn has virtually frozen acquisition financing and collapsed the value of many companies, which is credited for breaking up numerous acquisitions.

Client Alert | May 18, 2009

Germany Establishes National Security Review of Foreign Investments

In the next weeks, an important amendment to the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz – AWG) will enter into force. This change of law results from an intensive public debate in the summer of 2008 regarding investments by foreign sovereign wealth funds and other foreign investors in Germany.

Client Alert | April 17, 2009

SEC Grants No-Action Relief to Activist Shareholders Seeking to “Round Out” Short Slates With Each Other’s Nominees

SummaryOn March 30, 2009, the SEC staff issued two no-action letters regarding the solicitation of proxies to vote in the election of directors in a situation where two dissident shareholders had submitted separate "short slates" of director nominees for election at the same annual meeting.  The no-action letters permit a soliciting shareholder to "round out" its short slate of directors with the nominees of other dissident shareholders, under an expansive reading of the proviso to the "bona fide nominee" rule in Exchange Act Rule 14a-4(d).  Such proviso had historically been interpreted only to permit a soliciting shareholder to "round out" its short slate with nominees of the registrant.The effect of the no-action letters is to facilit

Client Alert | April 2, 2009

Acquisitions from Financially Distressed Entities Under the HSR Act

Washington, D.C. of counsel Malcom Pfunder is the author of "Acquisitions from Financially Distressed Entities Under the HSR Act" [PDF] published in the April 1, 2009 issue of ABA's Antitrust.

Client Alert | April 1, 2009

Takeover Preparedness and the New Hostile M&A Environment

By Eduardo Gallardo and Matthew Walsh (Gibson, Dunn & Crutcher LLP)*The recent financial turmoil has left many public companies' market capitalizations at 10-year lows.  Such depressed stock prices and the inability to access traditional sources of financing, coupled with the gradual erosion of antitakeover defenses under the pressure of corporate governance groups, have left many public companies vulnerable to a hostile overture or an activist investor campaign.  At the same time, other companies – particularly in the technology and pharmaceutical sectors – are flush with cash and searching for bargain acquisition candidates.

Client Alert | March 30, 2009

Germany Exempts Acquisitions with Little Effect on German Markets from Its Merger Control Regime

As of today, March 25, 2009, an important amendment to the German merger control regime has entered into force. This amendment will significantly decrease the number of de minimis and extra-territorial mergers that will need to be notified to the German Federal Cartel Office ("FCO", the Bundeskartellamt) in the future.

Client Alert | March 25, 2009

Where Have All the Deals Gone?

Orange County partner John M. Williams III and associate Theodore Kim are the authors of "Where Have All the Deals Gone?" [PDF] published in the March 2009 issue of the Orange County Business Journal.

Client Alert | March 2, 2009

Department of the Treasury Releases Final Regulations Governing the Committee on Foreign Investment in the United States (“CFIUS”)

On November 14, 2008, the U.S. Department of the Treasury, on behalf of the Committee on Foreign Investment in the United States, issued final regulations governing CFIUS.  This follows Treasury's issuance of proposed regulations on April 21, 2008.  The period for public comment ended on June 9, 2008.

Client Alert | November 18, 2008

Top Washington Lawyers – Corporate M&A

Washington, D.C. partner Stephanie Tsacoumis was featured in "Top Washington Lawyers - Corporate M&A" [PDF] published in the September 19-25, 2008 issue of Washington Business Journal.

Client Alert | September 19, 2008

The “Risk Limitation Act” – New Rules for Investors in German Listed Companies

A few days ago, the German legislature adopted the Risk Limitation Act (Risikobegrenzungsgesetz, the "Act") aimed at the limitation of perceived risks deriving from financial investors.

Client Alert | July 22, 2008

Recent Developments Highlight the Need to Review Advance Notice Bylaws

In the past two months, the Delaware courts have decided two cases addressing the scope of advance notice bylaws, in both cases holding that stockholders did not have to comply with the companies’ advance notice provisions in order to nominate directors.

Client Alert | May 27, 2008

German Aspects of Acquisition Financing

Munich office lawyers Birgit Friedl and Marcus Geiss are the authors of  "German Aspects of Acquisition Financing" [PDF] which appears in Financial Yearbook Germany 2008.   Reprinted by permission.

Client Alert | January 2, 2008

Deal Note: Gibson Dunn Represents Apria Healthcare in Acquisition of Coram Healthcare

Gibson, Dunn & Crutcher LLP's Health Care and Life Sciences Group is pleased to announce its representation of Apria Healthcare Group Inc. in connection with its acquisition of Coram, Inc., a provider of home infusion and specialty pharmaceutical services.

Client Alert | December 7, 2007

Deal Note: Gibson Dunn’s Media & Entertainment Group Represents Vivendi in Proposed Combination of the Businesses of Vivendi Games and Activision

Gibson, Dunn & Crutcher LLP's Media & Entertainment Group is pleased to announce its representation of Vivendi in connection with the proposed combination of the businesses of Vivendi Games and Activision which will create Activision Blizzard, which will be the largest pure-play video game publisher.

Client Alert | December 5, 2007

Cashing out company stock options in M&A transactions

Century City Partner Jonathan K. Layne and Associate Ari B. Lanin are authors of "Cashing out company stock options in M&A transactions" [PDF] in the December 2007 issue of Financier Worldwide.

Client Alert | December 1, 2007

Studying Schneider

Brussels Partner Peter Alexiadis & Associate Vassili Moussis, are authors of "Studying Schneider," [PDF] published in the October 2007 issue of the European Lawyer.

Client Alert | October 31, 2007

LBO – Le Leveraged Buy Out, une pratique en constante évolution

Paris Partner Sophie Resplandy-Bernard is the author of "LBO - Le Leveraged Buy Out, une pratique en constante évolution" [PDF--the article is in French, the title roughly translates as: "Leveraged Buy-Outs, A Practice in Constant Evolution"] published in Target Carrières Juridiques 2008.Reprinted with permission of Target Carrières Juridiques 2008.

Client Alert | October 15, 2007

2007 M&A Hot Topics Briefing

The Ritz-Carlton, McLean, VA OVERVIEW: This briefing included a comprehensive review of pressing market, diligence and tactical decisions required to complete a transaction.

Client Alert | April 26, 2007

Joint venture review under the new EC Merger Regulation

Munich Partner Michael Walther and Associate Ulrich Baumgartner are authors of "Joint venture review under the new EC Merger Regulation" [PDF] published in the The European Antitrust Review 2007.An extract from The European Antitrust Review 2007, a Global Competition Review special report -

Client Alert | October 18, 2006

Stapled Financing – Ein US-Import mit Zukunft?

Munich Partner Philip Martinius is the author of "Stapled Financing - Ein US-Import mit Zukunft?" [PDF in German] in the February 2006 issue of Going Public on the possibility of stapled financing becoming the new trend in M&A and private equity activities in Germany, pointing out strength and weaknesses, opportunities and threats for sellers, buyers and banks.

Article | January 31, 2006