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Negotiated Acquisitions of Companies, Subsidiaries and Divisions. - Product Image

Negotiated Acquisitions of Companies, Subsidiaries and Divisions.

  • ID: 2130338
  • January 2011
  • Region: United States
  • 1656 Pages
  • ALM Media, LLC

Learn the “shop secrets” that can help you negotiate the labyrinths of mergers and acquisitions. This masterful resource analyzes the relevant law and provides a strong dose of practice. It includes advice on structuring deals, negotiating agreements, identifying issues and solving the real problems that are likely to arise during the acquisition. The authors, skilled veterans of numerous corporate transactions, provide expert practical guidance, from the planning stages to post-closing.

Negotiated Acquisitions of Companies, Subsidiaries and Divisions is divided into several parts: planning transactions and advising boards; general and special provisions of the acquisitions agreement; and special topics, such as LBOs and troubled companies. You'll find everything from basic corporate, tax and accounting considerations to detailed analysis of representations, warranties, covenants and closing conditions. Novices as well as experienced practitioners will benefit from discussions of: mergers of equals; cash election mergers; fairness opinions; Sarbanes-Oxley; special committees of disinterested directors; intellectual property concerns; due diligence; and much more. You'll also learn about the latest developments, including techniques for handling economic uncertainty and stock market instability.

Published in 1992, updated as needed.

Volume 1

PART I
The Acquisition Process; Structuring the Deal

CHAPTER 1
The Basics: Acquisition Methods and an Overview of the Process
- 1.01 Overview of the Acquisition Process
- 1.02 Acquisition Methods
[1] Stock Purchases
[2] Asset Purchases
[3] Mergers
[4] Three-Party Mergers
[5] Binding Share Exchanges
[6] Short-Form Mergers
[7] Reversing the Structure
[8] Some Variations
[9] Acquisitions of Less than an Entire Company
[10] Acquisitions of Partnerships, Limited Partnerships, Limited Liability Partnerships, and Limited Liability Companies
[11] Issues to Be Considered in the Different Structures
- 1.03 Schematic Summary of Acquisition Methods
[1] Stock Purchase
[2] Asset Purchase
[3] Parent/Target Merger
[4] Forward Subsidiary Merger
[5] Reverse Subsidiary Merger
- 1.04 The Acquisition Process
[1] Sequence of Events
[2] Deferred or Simultaneous Closings
- 1.05 The Acquisition Agreement
[1] The “Deal” Provisions
[2] Representations and Warranties
[3] Covenants
[4] Conditions
[5] Indemnification
[6] Miscellaneous Matters: Choice of Law; Consent to Jurisdiction; Termination; Fees
- 1.06 Interplay Between Representations and Warranties and Due Diligence
- 1.07 The Purchase Price: Cash v. Noncash; Adjustment Mechanisms and the Effect of Seasonality
- 1.08 Social Issues

CHAPTER 2
Structuring the Transaction—Non-Tax Considerations
- 2.01 Scope of the Chapter
- 2.02 Corporate Law Considerations: Board Approval
- 2.03 Corporate Law Considerations: Stockholder Approval— The Statutory Scheme
[1] Stock Purchases
[2] Direct Mergers and Subsidiary Mergers
[3] Asset Sales
[4] Binding Share Exchanges
- 2.04 Shareholder Approval—Stock Exchange and NASD Requirements; Other Requirements
[1] Stock Exchange Rules
[2] NASD Requirements
[3] Other Shareholder Vote Requirements
- 2.05 Parent Stockholder Approval Requirements in Transactions Involving the Disposition of Subsidiaries
- 2.06 Appraisal Rights: A Structural Analysis
[1] Target Stockholders
[2] Stockholders of the Acquiring Entity
[3] “Market Out” Exceptions
[4] Critical Perspectives
- 2.07 Comparison of the Laws of California, Delaware, New York and the Model Business Corporation Act
- 2.08 Other Structuring Issues
[1] Basic Observations on the Transfer and Assumption of Assets and Liabilities
[2] Third Party Consents
[3] Governmental Consents
[4] Transfer Taxes
[5] Mechanics; Documentation
[6] Other Structuring Considerations
[7] Sarbanes-Oxley Structural Considerations
- 2.09 Summary Guidelines on Structuring

CHAPTER 3
Tax and Accounting Matters
- 3.01 Introduction
- 3.02 Taxable Transactions
[1] Basic Income Tax Consequences
[2] Asset Sales; Direct and Forward Subsidiary Mergers
[3] Stock Sales; Reverse Subsidiary Mergers
[4] Indemnification; Escrows
[5] Sales of Subsidiaries and Divisions
- 3.03 Reorganizations: Tax Free and Partially Tax Free Transactions
[1] Continuity of Interest
[2] Direct Mergers and Forward Subsidiary Mergers
[3] Reverse Subsidiary Mergers
[4] Stock for Stock Exchanges
[5] Assets Acquisitions for Stock
[6] Escrows and Contingent Stock
- 3.04 Reorganizations: Treatment of Targets, Acquirors and Shareholders
[1] Target Shareholder
[2] Treatment of Targets and Acquirors
- 3.05 Section 351 Transactions
[1] Tax Treatment
[2] The National Starch Transaction
- 3.06 Deductibility of Merger and Acquisition Expenses
- 3.07 Accounting for Business Combinations
[1] Historical Purchase Accounting and Pooling
[2] Current Acquisition (or Purchase) Accounting Method
[3] Recapitalizations and Leveraged Buyouts
- 3.08 Special Tax Issues in Restructuring Financially Troubled Corporations
[1] In General
[2] Cancellation of Indebtedness (“COI”) Income
[3] Net Operating Losses of the Financially Troubled Corporation

CHAPTER 4
Corporate Law Aspects of Acquisitions
- 4.01 Introduction
- 4.02 Duty of Care, Duty of Loyalty and the Business Judgment Rule
[1] Duty of Care
[2] Duty of Loyalty
[3] Business Judgment Rule
[4] Fiduciary Duties of Officers
- 4.03 The Classic Case of Duty of Care Failure
- 4.04 Board Duties and the Business Judgment Rule: The Rules of the Game When Selling the Company
[1] Introduction and Preview
[2] Enhanced Scrutiny
[3] Revlon and the Duty to Maximize Short-Term Value
[4] Conducting Auctions—The Legal Framework
[5] When Does the Revlon Duty Arise?
[6] Selling a Company the Old Fashioned Way
[7] Strategic Combinations and Mergers of Equals
[8] Summary
- 4.04A Representing Buyers
- 4.05 Practical Lessons and Suggestions
- 4.06 Duties to Other Constituencies
- 4.07 Going Private
[1] Delaware
[2] Other Jurisdictions
- 4.08 Appraisal Rights
[1] Procedural Requirements for Perfection of Appraisal Rights
[2] Determining Fair Value
- 4.09 Sales of Substantially All of a Corporation“s Assets
- 4.10 De Facto Mergers
- 4.11 Sales of Control
- 4.12 Dealing with Preferred Stock

CHAPTER 5
Legal and Regulatory Concerns
- 5.01 Introduction
- 5.02 Securities Act of 1933 and Related Matters
[1] Registered Transactions
[2] Exempt Securities and Exempted Transactions
[3] Resales and Registration Rights; Rules 144 and 145
[4] The Trust Indenture Act
- 5.03 Securities Exchange Act of 1934
[1] Certain Disclosure and Filing Requirements
[2] The Proxy Rules
[3] Third Party and Self Tenders: The Tender Offer Rules
[4] Insider Trading: Section 16
[5] Going Private: Rule 13e-3
[6] Regulation M: Manipulative Trade Practices
- 5.04 Hart-Scott-Rodino Antitrust Improvements Act
[1] H-S-R Act Summary
[2] H-S-R Filing Considerations
- 5.05 Acquisitions in Regulated Industries
[1] Introduction
[2] Communications Act
[3] Federal Aviation Act
[4] Interstate Commerce Termination Act
[5] Public Utility Holding Company Act
[6] Atomic Energy Act
[7] Federal Power Act
[8] State Insurance Regulation
[9] State Liquor Regulation
- 5.06 Bulk Sales Laws
[1] Introduction
[2] Article 6 Summary
[3] Comparing and Contrasting Article 6 With Revised Article 6
- 5.07 Margin Rules
[1] Introduction
[2] Regulation U
[3] Regulation T
- 5.08 The Worker Adjustment and Retraining Notification Act (“WARN Act”)
- 5.09 Non-U.S. Antitrust Merger Regulations
[1] In General
[2] Abbreviated Checklist of Non-U.S. Antitrust Merger Filings
- 5.10 Sarbanes-Oxley Act of 2002 and Related Reforms
[1] Introduction
[2] Disclosure Issues
[3] Personal Loans
[4] Audit Related Reforms
[5] Director Independence

CHAPTER 6
Letters of Intent
- 6.01 Advantages and Disadvantages
- 6.02 Contents of a Letter of Intent
- 6.03 The Binding Nature of Letters of Intent
[1] In General
[2] A Question of Intent: The New York Cases
[3] Texaco v. Pennzoil
[4] Breach of the Duty to Negotiate in Good Faith
[5] Promissory Estoppel
- 6.04 Tortious Interference with Contract

CHAPTER 7
Timing of Disclosure
- 7.01 In General
[1] The Case Law: Basic and Its Progeny
[2] The Practical Approach
- 7.02 Regulatory Considerations
[1] SEC Requirements
[2] Exchange Requirements

CHAPTER 8
The Due Diligence Investigation
- 8.01 Purpose of Due Diligence
- 8.02 Identifying the Team and Managing the Process
[1] In General
[2] The Lawyer“s Role
- 8.03 A Sample Due Diligence Checklist
- 8.04 Special Due Diligence Topics
[1] Environmental Due Diligence
[2] Products Liability Due Diligence Checklist
[3] Intellectual Property Due Diligence
[4] Sarbanes-Oxley Act of 2002

CHAPTER 9
Confidentiality Agreements
- 9.01 In General
- 9.02 Standard Terms
- 9.03 Special Problems Presented by the Sharing of Information by Competitors
- 9.04 “Standstill” Agreements
- 9.05 Disclosure of Confidential Information

PART II
The Acquisition Agreement; General Provisions

CHAPTER 10
Disclosure Schedules
- 10.01 Introduction
- 10.02 The Disclosure Schedule as an Exception Document
- 10.03 The Use of Disclosure Schedules to Assist the Buyer“s Due Diligence
- 10.04 Extent of Disclosure
[1] Blanket Disclosure and Cross Referencing
[2] Disclosure of Immaterial Items and Disclaimers
[3] Level of Specificity
- 10.05 Timing Considerations in the Delivery of Disclosure Schedules
[1] Supplementing Disclosure Schedules
[2] Delayed Disclosure Schedules

CHAPTER 11
Seller Representations and Warranties
- 11.01 General Considerations
[1] Purpose of Representations
[2] Scope of Representations
[3] Timing Considerations and Representations: Effect of the Bringdown
- 11.02 Knowledge Qualifications
- 11.03 Materiality Limitations
[1] In General
[2] Appropriate Use of Materiality Qualifications
[3] Double Materiality
- 11.04 Specific Representations of the Seller
[1] In General
[2] Corporate Organization and Existence
[3] Good Standing as a Foreign Corporation
[4] Capitalization and Title to Stock
[5] Subsidiaries
[6] Due Authorization
[7] No Violations; Approvals
[8] Financial Statements; Undisclosed Liabilities
[9] No Material Adverse Change
[10] Litigation
[11] Compliance with Law; Environmental Matters
[12] Title to Assets
[13] Taxes
[14] Employee Benefit Plans
[15] No Misleading Statements; Nonreliance Clauses
[16] Other Representations

CHAPTER 12
Representations and Warranties of the Buyer
- 12.01 General Considerations
- 12.02 Purposes of Representations of the Buyer
- 12.03 Specific Representations of the Buyer
[1] Buyer“s Ability to Consummate the Transaction
[2] Valuation of the Buyer“s Equity
- 12.04 Financing Representations of the Buyer

CHAPTER 13
Covenants
- 13.01 Introduction
- 13.02 Covenants Relating to the Transaction Process
[1] Covenants Generally Included
[2] Special Transaction Covenants
[3] Covenants Concerning the Buyer“s Financing
[4] Covenants Relating to Stockholder Approval
[5] Covenants Necessary in Stock Acquisitions
- 13.03 Covenants Relating to the Operation of the Business
- 13.04 Post-Closing Covenants
[1] In General
[2] Registration Rights
[3] Covenants Not to Compete
[4] Non-Solicitation of Employee
[5] Confidentiality
[6] Retention of Records and Availability of the Company“s Personnel Post-Closing
- 13.05 “No-Shops,” Termination Fees and Expense Reimbursement Provisions
[1] “No-Shop” Provisions
[2] Termination Fees and Expense Reimbursement Provisions
- 13.06 “Best Efforts”, “Reasonable Best Efforts”, and Similar Obligations

CHAPTER 14
Conditions
- 14.01 Introduction
- 14.02 The Bringdown; Compliance with Covenants
[1] Accuracy of Representations at Signing
[2] Time Frame of the Representations
[3] Double Materiality
[4] Transactions Otherwise Contemplated by the Agreement
[5] Delivery of Officers“ Certificate
[6] Liability
[7] Compliance with Covenants
- 14.03 Governmental and Third-Party Consents
[1] In General
[2] Hart-Scott-Rodino Waiting Period
[3] State Environmental Regulations
[4] Non-U.S. Competition and Foreign Investment Approvals
- 14.04 Litigation
- 14.05 Shareholder Approval; Securities Law Matters
[1] Shareholder Approval
[2] Dissenters“ Appraisal Rights
[3] Federal Securities Laws
[4] State Securities Laws
[5] Stock Exchange Listing; Securities Exchange Act Registration
[6] Rule 145 Letters
- 14.06 Accounting Conditions
[1] Background
[2] Acquisitions
[3] Form of Letter
[4] Observations
[5] Comfort Letters in Nonregistered Transactions
- 14.07 Tax Rulings and Opinions
- 14.08 Fairness Opinions
- 14.09 Legal Opinions
[1] A Theoretical Analysis
[2] Applications; Practicalities
- 14.10 Due Diligence Conditions
- 14.11 Miscellaneous Conditions
[1] Book Value Tests
[2] Execution and Delivery of Other Documents and Agreements
[3] Absence of Options, Convertible Securities
[4] Financing
[5] No Material Adverse Change
[6] Employment Related Conditions

CHAPTER 15
Indemnification
- 15.01 Introduction
- 15.02 General Liability Issues
[1] Scope of Indemnification
[2] Survival of Representations and Warranties
[3] Scope of Losses
[4] Exclusivity of Indemnification
- 15.03 Negotiating Issues in Indemnification Provisions
[1] Baskets, Ceilings and Thresholds
[2] The Effect of Tax Benefits or Insurance on Indemnification
[3] Identity of Parties Covered by Indemnification
[4] Effect of Knowledge and Fraud Exclusions
- 15.04 Other Liability Issues
[1] Transferee or Successor Liability
[2] Liability Under the Federal Securities Laws and State Securities Laws
- 15.05 Drafting Indemnification Provisions
[1] Use of Securities to Satisfy Indemnification Obligations
[2] Joint and Several Liability
[3] Indemnification Procedures
- 15.06 Collectibility of Indemnification: Set-Offs and Escrows
[1] In General
[2] Rights of Set-Off
[3] Escrow Arrangements

CHAPTER 15A
Miscellaneous Provisions
- 15A.01 In General
- 15A.02 Termination Provisions
- 15A.03 Third-Party Beneficiaries; Enforceability Issue

PART III
The Acquisition Agreement; Special Provisions

CHAPTER 16
Acquisitions of Public Companies
- 16.01 Introduction
- 16.02 Multistep Transactions
[1] The Basic Transaction
[2] Stock Purchase and Option Agreements
[3] The Tender Offer
[4] The Merger
[5] Legal and Regulatory Issues
- 16.03 Public Company Merger Agreements
[1] In General
[2] Specific Sarbanes-Oxley Considerations
- 16.04 Indemnification and Contingent Payment Rights
- 16.05 Formula Priced Deals
- 16.06 Shareholders Rights Plans
[1] Flip-In/Flip-Over Plans
[2] Back-End Plans
[3] Rights Plans and Competing Bidders
[4] “Dead Hand” and Nonredeemable Rights Plans

CHAPTER 17
Acquisitions of Subsidiaries, Divisions and Private Companies: Purchase Price Considerations
- 17.01 Types of Purchase Price
[1] Medium of Payment
[2] Valuation Techniques and Mechanics of Payment
[3] Timing of Payments
[4] Valuation Issues Associated with Equity Securities
- 17.02 Post-Closing Adjustments
- 17.03 Contingent Payment Mechanisms: Earn-Outs
- 17.04 Accounting Procedures and Dispute Resolution Mechanisms Applicable to Post-Closing Adjustments and Earn-Outs

CHAPTER 18
Acquisitions of Subsidiaries, Divisions and Private Companies: General Issues
- 18.01 Introduction
- 18.02 Identifying the Assets to Be Transferred
- 18.03 Identifying the Liabilities to Be Transferred
- 18.04 Receivables and Payables
- 18.05 Support Arrangements
- 18.06 Covenants Not to Compete
- 18.07 Transferee or Successor Liability
[1] In General
[2] De Facto Mergers
[3] Fraudulent Conveyances
[4] Successor Liability Imposed by Statute or Case Law

CHAPTER 19
Acquisitions of Subsidiaries and Divisions Special Tax and Employee Benefits Aspects
- 19.01 Introduction
- 19.02 Special Tax Considerations Applicable to the Acquisition of a Subsidiary or Division From a Consolidated Group
[1] Taxable Acquisitions
[2] Target Subsidiary“s Liability For Unpaid Federal Income Taxes of Seller“s Consolidated Group
[3] Indemnification for Pre-Acquisition Taxes and Control of Tax Audits
[4] Allocation of Target“s Tax Liability for the Taxable Year That Includes the Date of Acquisition
- 19.03 Qualified Benefit Plans
[1] Introduction
[2] Retention of Plan Assets and Liabilities by the Seller
[3] Assumption of the Seller“s Plan or Acceptance of the Transfer of Plan Assets by the Buyer
- 19.04 Multiemployer Plan Liability
[1] Withdrawal Liability
[2] Contributions
- 19.05 Other Employee Benefit Issues
[1] Welfare Benefit Plans
[2] Severance Plans
[3] Employment Law Violations

PART IV
Special Topics; LBOS, ESOTERIC Transactions and Troubled Companies

CHAPTER 20
Leveraged Buyouts and Recapitalizations
- 20.01 Introduction
- 20.02 Structure and Financing
[1] Different Structures; Effects on Creditors
[2] Subordination
- 20.03 Fraudulent Conveyance Issues
- 20.04 The Acquisition Agreement in a Leveraged Buyout
- 20.05 Equity Arrangements in Leveraged Buyouts
- 20.06 Partial LBOs
- 20.07 Leveraged Recapitalization

CHAPTER 21
Acquisitions and Dispositions of All or Part of a Troubled Company
- 21.01 Overview of the Problem
- 21.02 The Acquisition Process in a Troubled Company Situation
[1] The Due Diligence Process
[2] Timing of Disclosure
[3] Multiplicity of Parties
[4] Differences in the Acquisition Agreement
[5] Indemnification
[6] Lock-Ups, Termination Fees, Expense Reimbursement and Other Bidding Incentives
- 21.03 Fiduciary Duties of Directors of Financially Troubled Corporations
- 21.04 Special Issues in Troubled Company Acquisitions
[1] Fraudulent Transfer
[2] Bulk Transfer Laws
[3] Successor Liability
[4] Right to Reject or Assume Contracts
- 21.05 Strategies Associated with Troubled Company Acquisitions
[1] In General
[2] Pre-Bankruptcy Acquisition Strategies
[3] “Prepackaged” Bankruptcies
[4] Acquisition Strategies Within the Bankruptcy Process

CHAPTER 22
Some Miscellaneous Topics
- 22.01 Introduction
- 22.01A Mergers of Equals
[1] The Definition
[2] Effecting a Merger of Equals
- 22.02 Partial Acquisitions
- 22.03 Cash Election Mergers
- 22.04 Financial Advisors
[1] In General
[2] Fairness Opinions
[3] Liability
[4] Engagement Letters
- 22.05 Acquisitions in the United States by Foreign Companies
[1] SEC Requirements
[2] Exxon-Florio Amendment
[3] Regulated Industries
[4] Reporting Requirements
- 22.06 Auctioning a Company
- 22.07 Treatment of Options and Stock Based Awards
[1] Options and Stock Based Awards
[2] Golden Parachute Provisions
- 22.08 Registration Rights Agreements

Index

Lou R. Kling



Lou R. Kling is a partner at Skadden, Arps, Slate, Meagher & Flom LLP in New York. He has extensive experience in mergers and acquisitions of public and private companies, subsidiaries and divisions, including negotiated and contested acquisitions, leveraged buyouts and recapitalizations. He has also represented borrowers, issuers, underwriters and lenders in a broard spectrum of financing transactions. Mr. Kling is a permanent member of the firm’s Policy Committee, its top governing committee, and is currently co-chairman of the firm’s Opinion Committee and chairman of the Financial Oversight and Audit Committee.

Eileen T. Nugent



Eileen T. Nugent is a mergers and acquisitions partner at Skadden, Arps, Slate, Meagher & Flom LLP in New York. She has worked on a wide variety of acquisitions and dispositions of companies, subsidiaries and divisions, both public and private, hostile and negotiated, in the United States and around the world. A significant number of these transactions have been leveraged buyouts (LBOs), and she is co-head of the Firms Private Equity Group. Ms. Nugent has represented, a full range of transactional parties, including buyers, sellers and controlling stakeholders, boards of directors and special committees, LBO organizers and management teams, as well as investment bankers and various financing sources. She has worked on numerous recapitalizations and other reverse LBO transactions, such as initial public offerings, and is one of the firms leading practitioners in the field of M&A and restructuring of financially distressed companies. The breadth of her experience has resulted in her being the "go-to" expert as a senior legal, business and strategic advisor to her clients, particularly in the areas of corporate governance and conflict-of-interest situations, including dealing with significant stockholders.

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