When the board of a public company decides to undertake a strategic review, this may involve putting itself or some of its assets up for sale. These options may in turn be run as a formal auction or might involve (or be preceded by) more informal private discussions with a small number of parties to gauge market interest.
Client Alert | September 6, 2017
Brussels associates Pablo Figueroa and Alejandro Guerrero are the authors of "EU Merger Control in the Pharmaceutical Sector," [PDF] published in the September 2017 Eighth Edition of The Merger Control Review.
Article | September 1, 2017
Houston partner Michael Darden and associate Matt Savage are the authors of “An Overview of DrillCo Transactions and Select Drafting Considerations,” [PDF] published by the Oil, Gas & Energy Resources Law Section of the State Bar of Texas in Volume 42, Number 1: Fall 2017 of the Oil, Gas Energy Law Section Report.
Article | September 1, 2017
In M&A transactions that are structured as asset purchases, the buyer and the seller must define how the various assets and liabilities of the target business are to be divided between them. This exercise is unique to asset deals – in deals structured as mergers or stock purchases, all assets and liabilities of the target business effectively transfer to the buyer. But, in an asset deal, the parties have significantly more flexibility. This flexibility can be both a blessing and a curse. From the buyer's perspective, it allows the buyer to cherry pick which liabilities should transfer to the buyer and which liabilities should remain with the seller (leaving liabilities with the seller is obviously good for the buyer). From the seller's perspective,
Client Alert | August 25, 2017
This Client Alert provides an update on shareholder activism activity involving NYSE- and NASDAQ-listed companies with equity market capitalizations above $1 billion during the first half of 2017.
Client Alert | August 15, 2017
France is great again?Many of you have read positive articles on the new government in France and its freshly elected President, Emmanuel Macron. Is it real?First, one needs to understand the context: a quasi-unknown individual a year ago, Mr.
Client Alert | July 20, 2017
In our client alert "When is a Final Offer Not Final" on 9 November 2016 we described the way the UK's Takeover Panel operates its rules in a pragmatic way and on a principles basis. We described the battle for SVG Capital Plc and the conundrum that faced the Panel when HarbourVest Partners sought to acquire 100% of the assets of SVG at a higher "see through" price per share than its earlier share offer.The normal rule is that when a bidder has made a "final" offer it is not allowed subsequently to increase its offer later in the process. In the case of SVG the Panel did allow HarbourVest to make a higher offer for the assets demonstrating, what we then described, as a good example of how the Takeover Panel operates. That deal showed why
Client Alert | July 20, 2017
The UK system of public takeovers – both with regards to its rules (as set out in the Code on Takeovers and Mergers (the Code) and rulings under the Code – can be challenging to parties and practitioners not familiar with the underlying UK and European regimes on takeovers.The key features of the UK takeover system are its flexibility, certainty and speed, enabling parties to know where they stand under the Code in a timely fashion.
Client Alert | July 11, 2017
The last 12 months have seen various strides towards increased protectionism at a national level in the UK and other European member states and also at a European level.
Client Alert | July 6, 2017
Statutory appraisal rights under Delaware law continue to be the focus of intense discourse among M&A practitioners.
Client Alert | June 13, 2017
New York partner Barbara Becker, Washington, D.C. partner Stephen Glover and New York associate Daniel Alterbaum are the authors of "The Narrowing Window for the 'Merger Tax' in M&A Stockholder Lawsuits," [PDF] published by Financier Worldwide in June 2017.
Article | June 1, 2017
On 13 January 2017, the Ministry of Energy and Mineral Resources of the Republic of Indonesia issued Regulation No. 18 of 2017, which introduces a new form of gross-split production sharing contract and abolishes the cost recovery system, which has been a feature of Indonesia's production sharing contracts since their inception in 1966.
Client Alert | May 31, 2017
The growth of transatlantic private M&A (including private equity) has led to increasing examples of "two nations divided by a common language". Although many of the core principles of deal making are the same, there are market and cultural differences in the UK and US that participants should understand. We have seen many hours spent working through these differences and, whilst some are meaningful, others are in reality more "form over substance".Pricing mechanisms and adjustments. Post-closing price adjustments, such as for working capital, EBITDA or net assets, are familiar to the UK market but more commonly used in the US. In the UK many deals are instead done using a "Locked Box" structure (described in 2 below) where the econ
Client Alert | May 3, 2017
The Indian MarketThe Indian market continues to attract foreign investment as the Government of India ('Government') accelerates the implementation of second generation market reforms.
Client Alert | May 1, 2017
On April 20, 2017, Gibson Dunn co-hosted a major conference on mergers and acquisitions and corporate governance with Columbia Law School. The conference featured speakers from academia, the judiciary, media outlets, and the law and finance industries, brought together to discuss the latest issues in both mergers and acquisitions and corporate governance in the United States and globally. In addition to seven in-depth panels, the conference featured an interview of the Hon.
Article | April 21, 2017
M&A practitioners are well aware of the several standards of review applied by Delaware courts in evaluating whether directors have complied with their fiduciary duties in the context of M&A transactions. Because the standard applied will often have a significant effect on the outcome of such evaluation, establishing processes to secure a more favorable standard of review is a significant part of Delaware M&A practice. The chart below identifies fact patterns common to Delaware M&A and provides a preliminary assessment of the likely standard of review applicable to transactions fitting such fact patterns. However, because the Delaware courts evaluate each transaction in light of the transaction's particular set of facts and circumstances, and due to the ev
Client Alert | April 12, 2017
While the legal industry and the markets will not know the precise contours of the Trump Administration's antitrust policy for a number of months, certain policy changes are likely.
Publications | April 4, 2017
On March 7, 2017, the Delaware Chancery Court granted a motion to dismiss in In re Columbia Pipeline Group, Inc. Shareholder Litigation, which capped a line of cases starting with Corwin v. KKR Financial Holdings LLC and continued with In re Volcano Corporation Shareholder Litigation that clarified that the business judgment rule applies to tender offers and to mergers that are approved by a "fully informed, uncoerced vote" of disinterested stockholders in which the merger counterparty is a non-controlling stockholder or a non-conflicted controlling stockholder.
Client Alert | March 29, 2017
Our panel of experts discusses recent case studies showing keys for drafting M&A documents to maximize the potential for recovery for later discovered fraud, strategies for litigating those fraud claims and how to identify and use the other side's fraudulent conduct during litigation as your own tools for victory.
Webcasts | March 16, 2017
On February 8, 2017, U.S. District Judge Amy Berman Jackson blocked the proposed $48 billion merger of health insurers Anthem Inc. and Cigna Corp.
Client Alert | February 23, 2017
On January 22, 2016, the Delaware Court of Chancery signaled the demise of "disclosure-only" settlements in M&A stockholder lawsuits with its decision in In re Trulia, Inc.
Client Alert | February 17, 2017
China's antitrust regulators have continued to increase their enforcement of the Anti-Monopoly Law ("AML") in 2016. Given the high level of scrutiny in this area and the current legal environment in China, compliance with the AML should be a priority for businesses operating in China.
Client Alert | February 7, 2017
Dallas associate Michael Cannon is the author of "What Potential M&A Buyers Must Know About R&W Tax Risks," [PDF] published in Law360 on January 27, 2017.
Article | January 27, 2017
Employees are a key component to most business combinations. Without their cooperation, and preferably motivated enthusiasm, the transaction will not be as successful as it could be.
Webcasts | January 26, 2017
The Indian MarketThe Indian economy continues to be an attractive investment destination due to its sustained stable growth and implementation of further liberalisation policies by the Government of India ("Government").
Client Alert | January 19, 2017
Over the last eight years, the German economic recovery seemed very robust to any sort of political and financial turbulences occurring in the EU and world-wide.
Client Alert | January 13, 2017
This Client Alert provides an update on shareholder activism activity involving domestically traded public companies with equity market capitalizations above $1 billion during the second half of 2016.
Client Alert | January 9, 2017
Orange County partner James Moloney and associate Lauren Assaf are the authors of "Proxy Access a' la Private Ordering? Not So Fast!" [PDF] published in January 2017 in Deal Lawyers.
Article | January 1, 2017
Dubai partner Hardeep Plahe and associate Fraser Dawson are authors of "Watch out for some big M&A plays in 2017: Regional economies could build on some high-profile deals done this year," published in Gulf News on December 19, 2016.
Article | December 19, 2016
This fast-paced program explores the latest trends, structures, pitfalls and opportunities in M&A. The presentation addresses pertinent topics including:
Webcasts | December 13, 2016
It is too early to predict with confidence the direction that antitrust policy will take in the Trump Administration, because the President-elect has not yet announced who will lead the Antitrust Division of the Department of Justice ("DOJ") or the Federal Trade Commission ("FTC"). But President-elect Trump's selection of Senator Jeff Sessions for Attorney General and an antitrust transition team consisting of former Antitrust Division Deputy Assistant Attorney General David Higbee, former FTC Commissioner Joshua Wright, and Alex Pollock of the R Street Institute suggest that some changes to the level and types of federal antitrust enforcement are likely to occur. We think antitrust enforcement and policy in the Trump Administration may roughly track th
Client Alert | December 6, 2016
Dubai partner Hardeep Plahe is the author of "Negotiations Are Not About Wanting It All" [PDF] published in the December 4, 2016 issue of Gulf News.
Article | December 4, 2016
Munich partner Ferdinand Fromholzer is the author of "Gewährleistungsversicherungen beim Unternehmenskauf sind in der Praxis angekommen" [PDF]. This commentary, published in issue 48, dated December 2, 2016, of the German publication Der Betrieb, focuses on the increased acceptance of warranty and indemnity insurances in the practice of M&A transactions.
Article | December 2, 2016
Drag-along rights, or drag rights, which give the majority owner of a company the right to force minority owners to participate in a sale of the company, can be a fiercely negotiated provision in a company's governing documents. These provisions implicate the rights a majority owner and minority owner will have in a future sale transaction, which could be years down the road and to an unknown buyer. From the perspective of a majority owner, these provisions are intended to ensure that the majority owner will be able to sell the entire company on terms and conditions, and at the time, desired by the majority owner. In negotiating these provisions, the minority owner seeks to ensure that such a sale will not disadvantage the minority. In light of what is at stake and
Client Alert | November 28, 2016
London partner Charlie Geffen and Dubai partner Hardeep Plahe are the authors of "Business Yet to Get a True Fix on Brexit Consequences" [PDF] published on November 22, 2016 by Gulf News.
Article | November 22, 2016
Defense industry transactions present dealmakers with a unique set of hurdles, from diligencing top secret programs, to novating massive government contracts, to addressing the risks of doing business in far flung and dangerous jurisdictions like Iraq or Afghanistan.
Webcasts | November 14, 2016
The battle to take control of SVG Capital was a good example of how the UK's Takeover Panel operates on a pragmatic "principles" basis rather than on a strict rules basis. And it confirmed the importance, and benefits, of participants in UK public takeover transactions discussing their tactics with the Panel prior to announcing any proposals. IntroductionPublic company takeovers in the UK are regulated by the Takeover Panel. Whilst the Takeover Code contains a set of rules the Panel has always been clear that it operates on a "principles" basis and not a "strict rules" basis. The Code is not interpreted on a strict black letter basis and the Panel often refers to the "spirit" behind various rules of the Code. Many of the
Client Alert | November 9, 2016
Dubai partner Hardeep Plahe is the author of "Horses for Courses Strategy Should Prevail in Deals" [PDF] published on November 3, 2016 by Gulf News.
Article | November 3, 2016
On October 26, 2016, the Securities and Exchange Commission (SEC) voted (2-to-1) to issue proposed rules that would mandate the use of universal proxy cards by both issuers and dissidents in contested proxy solicitations for the election of directors. Advancing rules to require universal proxy cards has been a priority of SEC Chair Mary Jo White, and she and Commissioner Kara Stein voted to issue the proposed rules while Commissioner Michael Piwowar dissented. The SEC proposal also includes new disclosure requirements designed to ensure that voting options and standards applicable to the election of directors are clearly presented to shareholders. In issuing the proposed rules, the Commissioners supporting the rule proposals aimed to minimize the differences that currentl
Client Alert | November 1, 2016
Updated October 31, 2016 This revised alert supplements the version previously circulated on October 27, 2016. Although the 2016 Law does not contain a commencement date, we have learnt from sources at the Directorate of Investment and Company Administration that it will come into force on April 1, 2017.I. IntroductionThe Myanmar Investment Law ("2016 Law"), which replaces the Foreign Investment Law, 2012 ("2012 Law") and the Myanmar Citizen Investment Law, 2013 ("2013 Law"), has been enacted and, according to sources at the Directorate of Investment and Company Administration ("DICA"), will come into force on April 1, 2017. This new legislation follows the landmark victory of the National Leagu
Client Alert | October 27, 2016
Dubai associates Fraser Dawson and Nasser Haddad are the authors of "Keep a Lookout for the Activist Shareholder" [PDF] published on October 6, 2016 by Gulf News.
Article | October 6, 2016
The Indian MarketThe Indian economy continues to be an attractive investment destination due to its sustained stable growth and implementation of further liberalization policies by the Government of India ("Government").
Client Alert | October 3, 2016
Brussels associates Pablo Figueroa and Alejandro Guerrero are the authors of "EU Merger Control in the Pharmaceutical Sector" [PDF] published in the seventh edition of The Merger Control Review in August 2016.
Article | August 31, 2016
Dubai associates Fraser Dawson and Hanna Chalhoub are the authors of "A UAE Merger Play That Can Set Precedents" [PDF] published on August 22, 2016 by Gulf News.
Article | August 22, 2016
Palo Alto partner Lisa Fontenot is the author of "Lessons From Del. On Good Faith, Fair Dealing In Earnouts" [PDF] published on August 18, 2016 by Law360.
Article | August 18, 2016
This Client Alert provides an update on shareholder activism activity involving domestically traded public companies with equity market capitalizations above $1 billion during the first half of 2016.
Client Alert | August 16, 2016
Since 2010, 30 states and the District of Columbia have passed legislation authorizing for-profit "public benefit corporations" ("PBC"), known in many states just as "benefit corporations." Although these laws vary slightly by state, each requires the board of directors of a PBC to consider the public benefit, in addition to shareholder return on investment, in their decision-making.
Client Alert | August 9, 2016
Chinese acquirers have become very active in U.S. M&A, and present a number of issues outside the typical mold for U.S. acquisitions. This panel will address the unique circumstances that deals with Chinese buyers can present, including enforceability issues, questions regarding reverse termination fees and collateral support for the fee obligations, CFIUS factors, and financing considerations, among others.
Webcasts | July 20, 2016
The Foreign Direct Investment Policy ("FDI Policy") is the primary regulation governing foreign investment in India. The Government of India ("Government") introduced several amendments to the FDI Policy through the annual Consolidated Foreign Direct Investment Policy Circular, 2016 issued on June 7, 2016 ("2016 FDI Policy") and a subsequent press note issued on June 24, 2016 ("Press Note").
Client Alert | July 1, 2016
Munich partner Markus Nauheim and associate Philipp Mangini-Guidano are the authors of an "Exclusive Q&A on Mergers & Acquisitions with Dr.
Article | July 1, 2016