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Category Archives: Mergers and Acquisitions

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SEC issues guidance on Securities Act Rule 701 in context of mergers

Posted in Mergers and Acquisitions

The SEC’s Division of Corporation Finance recently issued new Compliance and Disclosure Interpretations (“C&DIs”) for Securities Act Rule 701 which clarify application of the Rule in the context of mergers. In a nutshell, Rule 701 provides an exemption from SEC registration requirements for private companies, private subsidiaries of public companies and foreign private issuers to… Continue Reading

Keeping Your Trade Secrets Safe: When NDAs Can Backfire

Posted in Mergers and Acquisitions

In business, we’ve all seen the traditional nondisclosure agreement (also known, more simply, as the “NDA”) between two parties wishing to discuss a potential business transaction. While NDAs are good tools to protect a party’s confidential information during such discussions,  businesses must take care to ensure that an NDA does not jeopardize the strong protections… Continue Reading

News from the front lines

Posted in Bob's Upticks, Corporate Governance, Disclosure Guidance, IPOs, Mergers and Acquisitions, SEC

Two news items from the front lines: First, you may recall my mentioning that the Council of Institutional Investors was considering adopting a new policy that would limit newly public companies’ ability to include “shareholder-unfriendly” provisions in their organizational documents (see “Caveat Issuer“, posted on February 13).  I just came back from Washington, DC, where… Continue Reading

Protect your Board from merger and acquisition lawsuits with these five critical considerations

Posted in Mergers and Acquisitions

For a board of directors of a company, perhaps no decision is as important (and litigious) as the sale of the company in a change-of-control transaction. Shareholder lawsuits aimed at merger and acquisition (“M&A”) transactions (usually in the form of a putative shareholder class action or derivative suit) often allege that the directors of the… Continue Reading

Securities Law 101 (Part V): Issuing shares of stock for mergers and acquisitions

Posted in Mergers and Acquisitions

This is the fifth part of our Securities Law 101 series.  Because capital raising is such a critical function for middle market companies, we designed this series to introduce their management teams to some of the fundamental concepts in securities law.  We hope that this series will prevent some of the most common mistakes management… Continue Reading

Dell shines a light on the risks of going private

Posted in Mergers and Acquisitions

So you are set on taking your company private.  Well, before you put your plans in motion, there are a lot of risks and potential consequences to consider along with the benefits.  At the moment, no one knows this better than Michael Dell, CEO of Dell Inc.   Back in February 2013, Mr. Dell and his… Continue Reading

Has stock returned as the currency of choice in mergers and acquisitions?

Posted in Mergers and Acquisitions

Cash may be king, but the use of stock to buy a target company can be very advantageous.  The practice of using stock to purchase a target company never really went away, but it did become less desirable to target company shareholders during the recent economic downturn.  With stock values dropping and access to credit… Continue Reading

Acquirers beware! New expedited acquisition method could violate the Exchange Act

Posted in Mergers and Acquisitions

When the private equity firm 3G Capital took Burger King private in 2010, it used an innovative “dual-track” acquisition structure to minimize the amount of time to consummate the acquisition. This involved 3G simultaneously pursuing both a friendly tender offer to Burger King shareholders as well as a traditional merger that would need to be… Continue Reading

Video Interview: Discussing the Facebook-Instagram Deal's Fairness Review with LXBN TV

Posted in Mergers and Acquisitions, Technology Company Issues

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding the Facebook/Instagram deal.  In the brief interview, I explain how things have changed since Facebook’s IPO and what, if anything, that meant for the deal’s fairness review with the California Department of Corporations.

Video Interview: Discussing the Facebook-Instagram Deal’s Fairness Review with LXBN TV

Posted in Mergers and Acquisitions, Technology Company Issues

Following up on my post on the subject, I had the opportunity to speak with Colin O’Keefe of LXBN regarding the Facebook/Instagram deal.  In the brief interview, I explain how things have changed since Facebook’s IPO and what, if anything, that meant for the deal’s fairness review with the California Department of Corporations.

Is Facebook’s acquisition of Instagram fair to Instagram shareholders?

Posted in Mergers and Acquisitions, Technology Company Issues

We previously blogged about the potential liability for Facebook, Inc. directors if the company paid too much for the social media start-up company Instagram. Recall that in April, Facebook agreed to acquire Instagram for, at the time, approximately $1 billion with the consideration payable 30% in cash and 70% in Facebook common stock (now, due… Continue Reading