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2016 Takeover Law & Practice Wachtell, Lipton, Rosen & Katz Takeover Law and Practice 2016 This outline describes certain aspects of the current legal and economic environment relating to takeovers, including mergers and acquisitions and tender offers. The outline topics include a discussion of directors’ fiduciary duties in managing a company’s affairs and considering major transactions, key aspects of the deal-making process, mechanisms for protecting a preferred transaction and increasing deal certainty, advance takeover preparedness and responding to hostile offers, structural alternatives and cross-border transactions. Particular focus is placed on recent case law and developments in takeovers. This edition reflects developments through mid-March 2016. © March 2016 Wachtell, Lipton, Rosen & Katz All rights reserved. Takeover Law and Practice TABLE OF CONTENTS Page I. Current Developments ..............................................................................1 A. Executive Summary ............................................................ 1 B. M&A Trends and Developments ........................................ 2 1. Deal Activity ........................................................... 2 2. Hostile and Unsolicited M&A ................................ 4 3. Private Equity Trends ............................................. 4 4. Acquisition Financing ............................................. 7 a. Investment Grade Acquisition Financing..................................................... 7 b. Leveraged Acquisition Financing ............... 7 5. Shareholder Litigation ............................................ 8 C. Shareholder Activism and Engagement .............................. 9 1. Hedge Fund Activism ............................................. 9 a. Large Companies and New Tactics .......... 10 b. M&A Activism and Appraisal Arbitrage ................................................... 12 2. Governance Activism............................................ 14 3. Shareholder Engagement ...................................... 19 D. Regulatory Trends ............................................................. 20 II. Board Considerations in M&A .............................................................25 A. Directors’ Duties ............................................................... 25 1. Duty of Care .......................................................... 25 2. Duty of Loyalty ..................................................... 26 B. The Standards of Review .................................................. 27 1. Business Judgment Rule ....................................... 28 2. Enhanced or Intermediate Scrutiny ....................... 28 a. Unocal ....................................................... 29 b. Revlon ....................................................... 32 1. When does Revlon apply? ............. 33 -i- 2. What is maximum value? .............. 34 3. What sort of sale process is necessary? ..................................... 35 c. Third-Party Overbids ................................ 39 3. Entire Fairness ...................................................... 41 C. Controlling Stockholders, Conflicts and Special Committees ....................................................................... 44 1. Controlling Stockholders ...................................... 44 2. Conflicts and Director Independence.................... 45 3. The Special Committee’s Procedures and Role ....................................................................... 46 4. Selecting Special Committee Advisors ................. 49 5. Transactions Involving Differential Consideration ........................................................ 50 III. The M&A Deal-Making Process .........................................................53 A. Preliminary Agreements: Confidentiality Agreements and Letters of Intent ...................................... 53 1. Confidentiality Agreements .................................. 53 2. Letters of Intent ..................................................... 55 B. Techniques for a Public Sale............................................. 58 1. Formal Auction ..................................................... 58 2. Market Check ........................................................ 59 C. Investment Bankers and Fairness Opinions ...................... 62 D. Use and Disclosure of Financial Projections .................... 67 IV. Structural Considerations.....................................................................69 A. Choosing a Transaction Form ........................................... 69 1. Federal Income Tax Considerations ..................... 69 a. Direct Merger ............................................ 69 b. Forward Triangular Merger ...................... 70 c. Reverse Triangular Merger ....................... 70 d. Section 351 “Double-Dummy” Transaction ................................................ 71 e. Multi-Step Transaction ............................. 71 f. Spin-Offs Combined with M&A Transactions .............................................. 72 -ii- 2. Tender Offers ........................................................ 73 a. Advantages of the Tender Offer Structure .................................................... 74 1. Speed ............................................. 74 2. Dissident Shareholders.................. 75 3. Standard of Review ....................... 76 b. DGCL Section 251(h) ............................... 76 c. Top-Up Options ........................................ 78 d. Dual-Track Tender Offers......................... 78 3. Mergers of Equals ................................................. 79 B. Consideration and Pricing ................................................. 81 1. All-Cash Transactions ........................................... 82 2. All-Stock Transactions.......................................... 82 a. Pricing Formulas and Allocation of Market Risk ............................................... 82 1. Fixed Exchange Ratio ................... 82 2. Fixed Value With Floating Exchange Ratio; Collars ............... 83 3. Fixed Exchange Ratio within Price Collar ................................... 85 b. Walk-aways............................................... 86 c. Finding the Appropriate Pricing Structure for All-Stock Transactions ........ 87 3. Hybrid Transactions: Stock and Cash .................. 88 a. Possible Cash-Stock Combinations .......... 88 b. Allocation and Oversubscription .............. 90 4. Valuing Stock Consideration in Acquisition Proposals ............................................................... 91 a. Short- and Long-Term Values .................. 92 b. Other Constituencies and Social Issues ......................................................... 93 5. Contingent Value Rights ....................................... 94 a. Price Protection CVRs .............................. 94 b. Event-Driven CVRs .................................. 95 -iii- V. Deal Protection and Deal Certainty ......................................................97 A. Deal Protection Devices .................................................... 97 1. Break-Up Fees ...................................................... 98 2. “No-Shops,” “No Talks” and “Don’t Ask, Don’t Waive” Standstills .................................... 100 3. Board Recommendations, Fiduciary Outs and “Force-the-Vote” Provisions ........................ 103 4. Shareholder Commitments.................................. 104 5. Information Rights and Matching Rights ........... 107 6. Other Deal Protection Devices ............................ 108 a. Issuance of Shares ................................... 108 b. Loans and Convertible Loans ................. 108 c. Crown Jewels .......................................... 109 B. Material Adverse Effect Clauses .................................... 110 C. Committed Deal Structures, Optionality and Remedies for Failure to Close......................................... 112 VI. Advance Takeover Preparedness and Hostile M&A .........................117 A. Rights Plans or “Poison Pills”......................................... 117 1. The Basic Design ................................................ 120 2. Basic Case Law Regarding Rights Plans ............ 121 3. “Dead Hand” Pills ............................................... 124 B. Staggered Boards ............................................................ 125 C. Other Defensive Charter and Bylaw Provisions ............. 126 1. Nominations and Shareholder Business.............. 127 2. Dissident Director Conflict/Enrichment Schemes .............................................................. 129 3. Meetings .............................................................. 129 4. Vote Required ..................................................... 130 5. Action by Written Consent ................................. 131 6. Board-Adopted Bylaw Amendments .................. 131 7. Forum Selection Provisions ................................ 131 8. Fee-Shifting Bylaws and Mandatory Arbitration Provisions ......................................... 133 D. Change-of-Control Employment Arrangements ............. 134 -iv- E. “Poison Puts” .................................................................. 136 F. Responding to an Unsolicited Offer—Preliminary Considerations................................................................. 138 1. Disclosure of Takeover Approaches and Preliminary Negotiations .................................... 139 2. Other Considerations .........................................
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