Mergers & Acquisitions

This article discusses updated documentation and timing for the Federal Reserve Main Street Lending Program and certain considerations for companies considering borrowing under the program.

This article discusses the recent revisions to the Federal Reserve’s Main Street Lending Program; borrower considerations regarding eligibility and access to the program; implications of certain covenants and restrictions; and considerations under existing debt documents.

Read about considerations for drafting material adverse change clauses in mergers & acquisitions in light of uncertainties associated with the COVID-19 pandemic.

As parties to merger or acquisition agreements carefully review their agreements to see what, if any, impacts the COVID-19 pandemic may have, the recent decision from the U.S. District Court for the Southern District of New York in Newmont Mining Corp. v. AngloGold Ashanti Ltd. provides meaningful guidance for the interpretation of Material Adverse Effect (“MAE”) provisions in agreements governed by New York law.

The coronavirus pandemic continues to have profound effects on the U.S. and global economies. Investor concerns about the impact of COVID-19 and government-imposed restrictions on individuals and businesses have led to unprecedented market volatility. Further material volatility is anticipated. In this environment, publicly traded companies may want to evaluate the adequacy of their corporate defenses to protect their stockholders from such predatory activities.

This article discusses the Federal Reserve’s Main Street Lending Program, including eligibility; impacts on debt service, capital structure, and strategic planning; and potential obstacles under existing debt and other agreements.

This advisory reviews strategies that sponsors and their portfolio companies can use to manage defaults, including proactive measures to avoid default, amendments and waivers to realign with a company’s revised outlook, sponsor support through equity cures, and lender forbearance.

This advisory provides a drafting guide for purchase and sale agreements in the post–COVID-19 era.

This article reviews debt financing opportunities available to investors in a down market and the pros and cons of each type of financing.

Read about the pros and cons for private company buyers seeking to purchase distressed targets through a formal bankruptcy process in the post–COVID-19 era plus strategies for success.

This alert covers new regulations taking effect on February 13, 2020 that significantly broaden CFIUS’s jurisdiction by granting it significant new review power over foreign investments in US businesses and real estate.

Read about issues to consider when drafting or negotiating transaction agreements with covenants to operate in the “ordinary course” of business between signing and closing.

In June 2019, the Delaware Supreme Court issued a decision reaffirming a risk of director liability where there is no board-level reporting process for essential compliance matters.  The facts of the case arise from a 2015 listeria outbreak at Blue Bell manufacturing which resulted in the death of three people. The Delaware case reaffirmed the position that directors may be subject to liability if the director “(1) completely fail[ed] to implement any reporting or information system or controls, or (2) having implemented such a system or controls, consciously fail[ed] to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.”  

Indemnification provisions in private company M&A contracts have received a lot of attention in recent years. These provisions are used to allocate risk among participants but there has been a lack of attention paid to another critical provision of these contracts. We highlight the frequency of certain provisions that shift control of these claims and examine the merits of various other approaches.

In Akorn v. Fresenius, the Delaware Court of Chancery determined that Fresenius validly terminated its agreement to acquire Akorn on the grounds of a material adverse change affecting Akorn’s business. Steve Gulotta discusses the significance of the decision and shares key takeaways.

This article reviews the Delaware Court’s Akorn decision, which allowed a buyer to escape an acquisition transaction because of a material adverse change affecting the seller’s business.

Congress has continued its 57-year tradition of passing an annual defense authorization bill with the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 finalized by Congress on August 1 and signed into law by President Trump on August 13. The NDAA makes important reforms and updates to the process by which investments in U.S. businesses by foreign persons are reviewed by the Committee on Foreign Investment in the United States (CFIUS) and updates and codifies Department of Commerce practices related to export controls.

The global M&A market has remained strong from the end of 2017 into 2018, with the total deals announced in the first half of 2018 making it the best period for global M&A yet. With stockholders pressuring larger companies to grow their revenues and the strong liquidity position of many companies, it is a sellers’ market. For companies looking to sell and participate in the record-breaking 2018 global M&A market of $890.7 billion in Q1 and $889 billion closed with $1.3 billion announced in Q2,2 the toughest question is often how to start.

The Premerger Notification Office (the “PNO”) of the Federal Trade Commission (the “FTC”) recently issued a reminder about often overlooked “transactions” that may require notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

Last week a Delaware federal district court unsealed its earlier opinion blocking the merger of two radioactive waste disposal companies.