Public Company M&A: Transaction Structures, Securities Compliance, Avoiding Shareholder Litigation
One-Step vs. Two-Step Mergers, Conducting Tender/Exchange Offers, Regulatory Hurdles
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Commercial Law
- event Date
Wednesday, July 26, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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This CLE webinar will examine the different approaches that can be taken in acquiring or merging with a U.S. public company and certain fundamental elements of a public company deal. The panel will also discuss the issues that can give rise to shareholder actions opposing a proposed merger and how to mitigate against such claims.
Mr. Hu’s practice focuses on public and private merger and acquisition transactions. He regularly advises investors, boards of directors, senior executives, and founders on strategic, legal, and business matters in all types of M&A transactions, including leveraged buyouts, public company mergers, corporate carve-outs, minority investments, and distressed situations. Mr. Hu advises on transactions across the industry spectrum, with substantial experience in the technology, life science and health care, and consumer space. He is an adjunct professor at Cornell Law School and Cornell Tech.
Mr. Mills practices in the firm’s Mergers and Acquisitions Group, advising on domestic and cross-border transactions for public and private companies across all industries. He also advises on stockholder activism, corporate governance, fiduciary duties and takeover defense.
Mr. Seifried’s practice focuses on public and private company acquisitions and divestitures, leveraged buyouts, cross-border transactions and securities transactions. He also regularly advises clients on activist defense, corporate governance and compliance matters, federal and state reporting obligations, takeover preparedness and other significant corporate matters. Additionally, Mr. Seifried has advised numerous investment banking clients in transactional and financial advisory work.
Acquiring a public company, whether by a private equity sponsor or another public company, involves a number of deal points and legal considerations, including disclosure issues under federal securities law and fiduciary duty issues under applicable state law. Getting a public company deal done therefore requires careful planning on the process and thoughtful consideration on the deal terms.
A negotiated acquisition of a public company typically is structured as a "one-step" statutory merger governed by the law of the state in which the target company is organized, or a "two-step" merger, comprised of a tender or exchange offer followed by a "back end" statutory merger.
A prospective acquirer can elect to build a stake in the target company's shares prior to commencing discussions with the target, but a party that acquires more than five percent equity with a view toward pursuing an acquisition must make a public filing with the SEC on Schedule 13D.
Acquisitions of U.S. public companies can result in shareholder actions in the form of "strike suits," which attack flaws in the sale process and/or the disclosures regarding the transaction, and appraisal actions in which shareholders demand a judicial determination of the "fair value" of their shares. Care should be taken at each step of the merger process to mitigate the risk of shareholder suits.
Listen as our authoritative panel discusses structuring and regulatory issues associated with public company M&A and how to anticipate and respond to shareholder litigation opposing a proposed merger.
- Introduction
- Unique aspects of public company merger relative to a private company acquisition
- Latest trends in public company acquisitions
- Transaction structures
- One-step merger
- Two-step: tender offer or exchange offer followed by a "back-end" merger
- Associated timeline and deal terms for each structure
- Deciding on the approach to take
- Disclosure requirements
- Leaks and premature disclosures
- Stake-building consideration
- Timing for the announcement and customary deal rollout communications
- Pre-commencement filings
- Proxy statement versus tender offer disclosure requirements
- Key substantive disclosure requirements
- Stock deal disclosure requirements
- Shareholder litigation
- Strike suits--areas of focus in the process
- Appraisal actions--Delaware notice and other statutory conditions; recent case law
- Responding to shareholder claims
The panel will review these and other relevant issues:
- What are the securities disclosure requirements associated with a one-step merger? A two-step merger?
- How does state law figure into the merger process? What are the particular requirements in Delaware?
- What are best practices for conducting a tender or exchange offer to avoid any delays in the transaction?
- What are the most common shareholder actions that are brought in opposition to a proposed merger?
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