Mergers & Acquisitions

Read about a Third Circuit ruling, which held that a creditor’s right to future royalty payments in a non-executory contract — an agreement in which one party has performed all material obligations and the other has not — could be discharged in the bankruptcy of a counterparty-debtor. The decision highlights the importance of properly structuring M&A, earn-out, and royalty-based transactions.

Read about the steps to implement a pre-transaction reorganization under Section 368(a)(1)(F), known as an F reorganization, on a target that is treated as an S corporation for tax purposes, which can offer significant tax benefits to buyers and sellers.

This week, the Antitrust Division of the U.S. Department of Justice (DOJ) reached one of its largest “gun jumping” settlements following allegations that sporting and entertainment events company, Legends Hospitality, illegally conducted business with its acquisition target, ASM Global Inc., prior to consummating their transaction.

The Federal Trade Commission (FTC)’s new rule to ban most post-employment non-compete agreements could significantly impact M&A and private equity transactions. Assuming it withstands legal challenges, the rule will require buyers and private equity sponsors to rethink many of their asset protection strategies.

Read about proposed Treasury regulations that provide guidance on the application of the stock buyback excise tax to redemptions and M&A transactions.

Amid ongoing growth in global M&A, buyers evaluating cross-border opportunities need to weigh many issues. Mintz M&A and antitrust attorneys look at considerations for European companies and private equity funds seeking targets in the United States, including US deal structures, antitrust regulations, and deal-reporting requirements.

Read about the BEA’s mandatory Benchmark Survey of Foreign Direct Investment in the U.S., its other investment reporting requirements, and implications of the rules for entities considering transactions.

Navigating the regulatory frameworks that impact health care transactions can be challenging. These frameworks have the ability to impact multiple aspects of a transaction, including timing, structure, and valuation. Knowing how to identify and avoid these regulatory pitfalls is critical to averting these challenges that can delay or break a deal. And, ultimately, it’s what you know that can make the deal.

In this advisory, we discuss a recent amendment to the Delaware General Corporation Law (DGCL) permitting a Delaware corporation to eliminate or limit the personal liability of certain officers of the corporation — for monetary damages to the corporation or its stockholders — for the breach of the fiduciary duty of care.

This advisory discusses how the Antitrust Division of the Department of Justice and the Federal Trade Commission restrict information sharing by buyers and sellers in a business combination transaction, or so-called gun jumping.

Read Week 1 of Mintz’s Sell-Side Series, Pre-Planning: Developing Your Goals and Defining Your Game Plan, for tips on setting goals for an eventual sale, building an external and internal team, managing employee relationships, and getting organized.

In the world of Mergers and Acquisitions (“M&A”), both buyers and sellers are placing greater emphasis on Environmental, Social, and Governance (“ESG”) credentials. 

This alert discusses the Delaware Supreme Court’s decision in Manti Holdings v. Authentix Acquisition Co. that upheld the enforceability of an advance waiver of statutory appraisal rights by common stockholders.

This advisory discusses how courts could interpret common terms in merger agreements, including material adverse change (MAC), material adverse event (MAE), and force majeure clauses and ordinary course of business covenants, in light of the COVID-19 pandemic.

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a "363 Sale”). We are back with our second post, to provide more detail to the process and discuss some pros and cons of 363 Sales.

As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.

Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.

For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.

This advisory discusses SEC’s amendments to the financial disclosure requirements for business acquisitions and dispositions by reporting companies and IPO candidates.

The Mintz and Mergermarket report on recent M&A activity in the life sciences sector examines deal drivers and companies’ post-closing integration experiences.