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Hostile Takeover

Mergers And Acquisitions; Board Of Directors Responsibilities – Delaware

Recently the Delaware Chancery Court rejected an interested executive’s defense of a breach of fiduciary duty claim, reminding us of the importance of making full and accurate disclosures when seeking shareholder approval for a merger or acquisition transaction. In particular, in the case of In re Xura, Inc. Stockholder Litigation the Delaware Chancery Court denied a motion to dismiss brought against a merger target company’s CEO, alleging that he had orchestrated the company’s sale to a particular bidder based on his self-interest in the outcome of the transaction.

The CEO argued that his actions should have been judged by the deferential business judgement rule and not a higher entire fairness standard because the transaction was approved by a majority of the disinterested shareholders. The CEO relied on the 2015 Delaware Supreme Court case of Corwin v. KKR Financing Holdings which held that a transaction that would be subject to enhanced scrutiny would instead be reviewed under the deferential business judgment

SEC Issues New C&DI On Abbreviated Debt Tender And Debt Exchange Offers

The SEC has been issuing a slew of new Compliance and Disclosure Interpretations (“C&DI”) on numerous topics in the past few months. On November 18, 2016, the SEC issued seven new C&DI providing guidance on tender offers in general as well as on abbreviated debt tender and debt exchange offers, known as the Five-Day Tender Offer. The guidance related to the Five-Day Tender Offer clarifies a previously issued January 2015 no-action letter on the subject. As I have not written on the subject of tender offers previously, I include a very high-level summary of tender offers in general and together with specific discussion on the new C&DI.

What Is a Tender Offer?

A tender offer is not statutorily defined, but from a high level is a broad solicitation made by a company or a third party to purchase a substantial portion of the outstanding debt or equity of a company. A tender offer is set for a specific period

Mergers And Acquisitions; Appraisal Rights

Unless they are a party to the transaction itself, such as in the case of a share-for-share exchange agreement, shareholders of a company in a merger transaction generally have what is referred to as “dissenters” or “appraisal rights.”  An appraisal right is the statutory right by shareholders that dissent to a particular transaction, to receive the fair value of their stock ownership.  Generally such fair value may be determined in a judicial or court proceeding or by an independent valuation.  Appraisal rights and valuations are the subject of extensive litigation in merger and acquisition transactions.  As with all corporate law matters, the Delaware legislature and courts lead the way in setting standards and precedence.

Delaware Statutory Appraisal Rights

Although the details and appraisal rights process vary from state to state (often meaningfully), as with other state corporate law matters, Delaware is the leading statutory example and the Delaware Chancery Court is the leader in judicial precedence in this area of

Mergers And Acquisitions – The Merger Transaction

Although I have written about document requirements in a merger transaction previously, with the recent booming M&A marketplace, it is worth revisiting.  This blog only addresses friendly negotiated transactions achieved through share exchange or merger agreements.  It does not address hostile takeovers.  

A merger transaction can be structured as a straight acquisition with the acquiring company remaining in control, a reverse merger or a reverse triangular merger.  In a reverse merger process, the target company shareholders exchange their shares for either new or existing shares of the public company so that at the end of the transaction, the shareholders of the target company own a majority of the acquiring public company and the target company has become a wholly owned subsidiary of the public company.  The public company assumes the operations of the target company.    

A reverse merger is often structured as a reverse triangular merger.  In that case, the acquiring company forms a new subsidiary which merges with the

A Summary Of The 2015 Amendments To The Nevada Revised Statutes

Although the federal government and FINRA have become increasingly active in matters of corporate governance, the states still remain the primary authority and regulator of corporate law.  The two most popular states for incorporation by business entities remain Nevada and Delaware, both of which offer corporations a degree of flexibility from a menu of reasonable alternatives that can be tailored to the companies’ business sectors, markets and corporate culture. 

In 2015 the Nevada Legislature made several changes to the Nevada Revised Statutes (NRS) which impact public and private companies incorporated in Nevada.  The changes go into effect on October 1, 2015.  I begin this blog by reviewing the benefits offered by Nevada as a choice of state of incorporation and then follow with a summary of the 2015 amendments.

Nevada as a Choice of Corporate Domicile

Together with Delaware, Nevada is one of the most popular state choice for entity domicile.  The following is a summary of the most

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