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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Thursday, February 27, 2025

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will examine critical issues that directors and their counsel should consider in evaluating and responding to an unsolicited acquisition offer. The panel will discuss steps a company can take to prepare in advance for a takeover bid and suggested procedures for mounting an effective response when an unsolicited offer is received.

Faculty

Christopher D. Barnstable-Brown
Partner
Wilmer Cutler Pickering Hale and Dorr, LLP

Mr. Barnstable-Brown's nationally recognized practice focuses on mergers and acquisitions, corporate governance and corporate finance transactions, with particular emphasis on the technology, finance and life sciences industries. He has extensive experience advising public and private companies and private equity sponsors in matters involving domestic and international mergers and acquisitions, strategic investments, joint ventures and asset sales. Mr. Barnstable-Brown is a trusted advisor to issuers, underwriters and lenders in domestic and international financing transactions, including public and private offerings of debt and equity securities, as well as solutions-focused advice to emerging growth companies during all stages of their lifecycles, including with respect to corporate organization, governance, venture and mezzanine financings and sales transactions.

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Francis J. Aquila
Partner
Sullivan & Cromwell

During the course of his career, Mr. Aquila has advised on deals totaling more than $1 trillion in value, including advising on more than $150 billion in 2015 and more than $100 billion in 2019. He has been called upon by global leaders such as Amgen, Andeavor, Anheuser-Busch InBev, Baxter International, Biohaven Pharmaceuticals, Canadian Pacific, Cheniere Energy, Cornerstone Building Brands, Diageo, Diebold Nixdorf, GameStop, Haleon, International Airline Group, Kering, Kraft, Navistar International, Novartis, Tiffany & Co. and United Rentals to advise them and their boards of directors on M&A, corporate governance, ESG, activism, proxy contests, unsolicited bids, ransomware attacks, short squeezes, crisis management and a range of matters affecting corporate policy and strategy. Mr. Aquila is a member of the firm’s Management Committee and is the firm’s Senior M&A Partner. Previously, he was Global Head of the firm’s M&A Practice and Co-Managing partner of the firm’s General Practice Group (the Firm’s global corporate practice).

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Description

Market volatility often results in unsolicited acquisition offers for undervalued companies. A target's board must have a strategy for responding to an unsolicited takeover bid, which strikes a balance between permitting a takeover that delivers a fair value and resisting a proposal that is not in the best interest of their shareholders.

Counsel needs to consider the makeup of the bidder, management, the board, and the shareholders to identify and resolve conflicts of interest and other issues that may arise with respect to the offer. The type of bidder--strategic as opposed to financial, friendly as opposed to hostile--and the proposed deal structure are also critical as they could have significant implications for management and operations.

Selecting a deal team with clearly defined roles can help a board to properly discharge its fiduciary duties. Boards can take actions in advance of receiving an offer to improve their ability to deal with an unsolicited bid, including maintaining and periodically reviewing a strategic plan for long-term success, establishing "on the shelf" anti-takeover defenses, and maintaining a plan for assessing and responding to unsolicited offers.

While application of the business judgment rule may vary from state to state, courts will generally support a board's decision to accept or reject a takeover offer where it follows a reasonable decision-making process with no conflicts of interest. Counsel should ensure that corporate minutes (including those of any special committee) fully reflect the board's evaluation of and response to the offer.

Listen as our authoritative panel discusses best practices for responding to unsolicited acquisition offers and the steps potential targets can take in advance to prepare for these offers.

Outline

  1. Takeover bids in the current environment
  2. Key players: bidder, management, the board, shareholders, regulators
  3. Designing a strategic plan for responding to unsolicited offers
  4. Board of director duties
    1. Identifying conflicts of interest; determining need for special committee
    2. How the type or structure of the offer can affect the response
    3. Application of the business judgment rule
  5. Retaining management and other operational considerations
  6. Takeover defense strategies

Benefits

The panel will review these and other important questions:

  • When do conflicts of interest arise for directors in responding to a takeover bid and how should they be addressed?
  • What steps can be taken within the board and management to prepare in advance for unsolicited offers?
  • Why is the distinction between a financial and strategic bidder important in fashioning a company's response?
  • What takeover defense strategies can be put in place before (or after) a bid is received?