Mergers, Acquisitions and Tender Offers: Law and Strategies — Corporate, Securities, Taxation, Antitrust, Cross Border

Front Matter
Dedication
About the Author
Preface
Acknowledgments
Table of Chapters
Table of Contents
Summary of New Developments Regarding Chapters 14-28
Chapter 1. Introduction
Part I. Contract Law and Related Considerations in M&A, Including Drafting of Acquisition Agreements
Chapter 2. General Principles in Drafting an Acquisition Agreement—Merger Agreement, Asset Acquisition Agreement, and Stock Purchase Agreement
Chapter 3. Confidentiality Agreements, Due Diligence, Letters of Intent and Exclusivity Agreements
Part II. Corporate Law Considerations in M&A
Chapter 4. Structuring Mergers, Asset Acquisitions, and Compulsory Share Exchanges
Chapter 5. Fiduciary Duties of Directors, Officers, and Controlling Shareholders
Part III. Federal Securities Law Considerations in M&A
Chapter 6. Introduction to the ’33 and ’34 Acts and Exemptions in Acquisitions of Closely Held Targets
Chapter 7. Impact in Negotiated Public Company M&A of the ’33 and ’34 Acts
Chapter 8. Tender Offers, Open Market Purchases, and Going Private Transactions
Part IV. Federal Income Tax, Accounting, and Valuation Considerations in M&A
Chapter 9. Federal Income Tax Considerations in Taxable and Tax-Free Domestic M&A
Chapter 10. Financial and SEC Accounting Considerations
Chapter 11. Valuation Considerations in M&A and Dealing with Investment Bankers
Part V. U.S. Substantive Antitrust and Pre-Merger Notification Considerations in M&A
Chapter 12. U.S. Substantive Antitrust Analysis
Chapter 13. U.S. Pre-Merger Notification
Part VI. Domestic M&A Transactions Presenting Unique Issues
Chapter 14. Introduction to Leveraged Buyouts
Chapter 15. Introduction to Spin-Offs: Tax, Corporate, Securities, and Fraudulent Conveyance Issues
Chapter 16. Bankruptcy M&A: The TWA and Lehman Bankruptcy Sales, and the Sears G Reorganization
Chapter 17. M&A Involving Bank Holding Companies, Including Impact of the Dodd-Frank Act
Chapter 18. Introduction to M&A in FCC, FERC and Aviation Regulated Industries
Part VII. Cross-Border Considerations in M&A
Chapter 19. Introduction to Corporate, Securities, Tax, Antitrust, and Exon-Florio Issues in Inbound Cross-Border M&A
Chapter 20. Introduction to Corporate, Securities, Tax, Antitrust, and Investment Restriction Issues in Outbound Cross-Border M&A
Chapter 21. Federal Income Tax Considerations in Taxable Cross-Border M&A
Chapter 22. Federal Income Tax Considerations in Tax-Free Cross-Border M&A
Part VIII. Special Topics
Chapter 23. State Income Tax Considerations in Taxable and Tax-Free M&A
Chapter 24. Joint Ventures
Chapter 25. Checklist Guide to Structuring M&A Transactions
Chapter 26. Ethical Issues in M&A
Chapter 27. Deal Lawyer’s Guide to Health Care M&A
Chapter 28. Shareholder Activism and Merger Arbitrage
Table of Cases
Table of References
Index
Appendices in Volume 4
Appendix 2A. Taleo–JobFlash Asset Acquisition Agreement
Appendix 2B. Fortress–SMLB Stock Purchase Agreement
Appendix 2C. Sirius–XM Reverse Subsidiary Stock Merger Agreement
Appendix 2D. Toys “R” Us Reverse Subsidiary Cash Merger Agreement
Appendix 2E. Koch–Georgia Pacific, Tender Offer/Merger Agreement with Top-Up Option
Appendix 2F. Mars–Wrigley Merger—Reverse Break-Up Fee Provisions
Appendix 2G. InBev–Anheuser-Busch Cross Border Cash Merger, Termination and Third-Party Beneficiary Provisions
Appendix 2H. H&R Block–Option One Asset Purchase Agreement
Appendix 2I. International Paper–Weyerhaeuser Asset Purchase Agreement
Appendix 2J. Yildiz–Campbell Soup Stock Purchase Agreement
Appendix 2K. Oracle–Siebel Horizontal Double Dummy Merger Agreement
Appendix 2L. Bank of America–LaSalle Bank Stock Purchase Agreement
Appendix 2M. J.P. Morgan–Bear Stearns Reverse Subsidiary Merger Agreement—Deal Protection Devices
Appendix 2N. Bank of America–Countrywide, Direct Subsidiary Merger into Limited Liability Subsidiary
Appendix 2O. Dow Chemical Acquisition of Rohm and Haas in an “Ironclad” Reverse Subsidiary Cash Merger with a “Ticking Fee”
Appendix 2P. Pfizer–Wyeth Merger Agreement, Provisions Related to Cash and Stock Considerations, Financing, and Termination and Reverse Termination Fees
Appendix 2Q. Sample Transitional Services Agreement Relating to the Purchase of a Division
Appendix 2R. Cerberus’s Acquisition of DynCorp, Double Trigger Termination and Reverse Termination Fees
Appendix 2S. Burger King Two-Step or One-Step Merger Agreement
Appendix 2T. Sanofi’s Acquisition of Genzyme—The CVR
Appendix 2U. Dell’s Acquisition of Compellent, Requirement That Compellent Adopt a Poison Pill
Appendix 2V. Documents Relating to the Tender Offer by Mallinckrodt Plc for the Stock of Cadence Pursuant to a February 2014 Merger Agreement with a Section 251(h) Second Step Merger Provision
Appendix 3A. Confidentiality Agreement, Koch–Georgia Pacific
Appendix 3B. Acquirer’s Due Diligence Checklist for Target
Appendix 3C. Letter of Intent, PerfectData–Sona
Appendix 3D. Exclusivity Agreement Between Citigroup and Wachovia
Appendix 3E. Amylin 2007 Private Placement of Convertible Notes, Indenture Provisions Relating to Mergers and Change of Control
Appendix 3F. Settlement and Release Agreement Relating to Verizon’s Acquisition of Certain Yahoo Operating Assets, Exhibit C to the April 24, 2017 Yahoo Proxy Statement for the Transaction
Appendix 5A. MCI’s Poison Pill
Appendix 5B. MCI–Verizon Deal Protection Devices
Appendix 5C. TXU LBO, Go-Shop; Break-Up and Reverse Break-Up Fees; Financing; Regulatory Approvals
Appendix 5D. LinkedIn’s Certificate of Incorporation, Bylaws, and S-1 Discussion of Capital Stock and Anti-Takeover Provisions
Appendix 5E. Guide to Directors’ Fiduciary Duties in M&A Transactions
Appendix 6A. Evercore IPO Documents
Appendix 6B. Evercore Form 10-K, for Year Ended December 31, 2007
Appendix 6C. Evercore Free Writing Prospectus, May 15, 2007
Appendix 6D. Oracle Annual Proxy Statement for 2008
Appendix 6E. IBM Note Offering on Automatic Shelf Registration Statement, October 2008
Appendix 6F. Morgan Stanley–Mitsubishi Registration Rights Agreement
Appendix 6G. Citadel Private Offering Circular for a Rule 144A Offering
Appendix 6H. Sapphire Industrials Corp., a SPAC
Appendix 7A. Sirius Form 8-K Reporting Merger with XM
Appendix 7B. Sirius–XM Rule 165 Investor Presentation
Appendix 7C. Sirius Prospectus and Sirius and XM Joint Proxy Statements, October 2, 2007
Appendix 7D. Toys Rule 14a-12 Statement on Form 8-K Reporting Merger
Appendix 7E. Toys Reverse Subsidiary Cash Merger Proxy Statement Schedule 14A for a Cash Merger
Appendix 7F. SEC Comment Letter on Sirius Prospectus and Sirius and XM Joint Proxy Statements
Appendices in Volume 5
Appendix 8A. Microsoft’s Bear Hug Letter to Yahoo!
Appendix 8B. Oracle’s Schedule TO for Tender Offer for PeopleSoft
Appendix 8C. Oracle’s Summary Advertisement for Tender Offer for PeopleSoft
Appendix 8D. Oracle’s Offer to Purchase in Tender Offer for PeopleSoft
Appendix 8E. PeopleSoft Schedule 14D-9
Appendix 8F. Getty Images, Going Private Management Buyout on Schedule 13E-3
Appendix 8G. Biogen 2008 Amendments to Advanced Notice By-Laws
Appendix 8H. CF Industries’ S-4 forExchange Offer for Terra
Appendix 8I. CF Industries’ Proxy Statement for Contested Election of Directors of Terra
Appendix 8J. NRG’s Fight Letter in Response to Exelon’s Proxy Contest
Appendix 9A. The BK—Tim Hortons Pre-Transaction Structure
Appendix 9B. Summary of the BK—Tim Hortons Pre-Transaction Structure
Appendix 9C. The BK—Tim Hortons Transaction
Appendix 9D. Post-Transaction BK—Tim Hortons Structure
Appendix 9E. Checklist for Planning a Taxable Acquisition and Leveraged Buyout (LBO)
Appendix 9F. Checklist for Planning Reorganizations
Appendix 10A. Accounting and Financial Provisions of Sirius–XM Prospectus/Proxies, October 2, 2007
Appendix 10B. Sirius Financial Statements Included in Form 10-K for 2007
Appendix 10C. Oracle Form 8-Ks Regarding the Completion of Its Acquisition of BEA Systems for Cash and the Filing of the Required Financials
Appendix 10D. Pfizer S-4 for Acquisition of Wyeth, June 17, 2009—Financial Statements
Appendix 11A. S-4 Discussion of Financial Advisor’s Fairness Opinion for Sirius in Its Acquisition of XM
Appendix 11B. Lazard’s Computation of Conrail’s Weighted Average Cost of Capital
Appendix 11C. Lazard’s Discounted Cash Flow Analysis of Conrail
Appendix 11D. Wasserstein and Shearson Valuation of Warner
Appendix 11E. Proxy Statement Discussion of Financial Advisor’s Fairness Opinion for Toys
Appendix 11F. Sample Buy-Side Investment Banker Engagement Letter
Appendix 11G. Sample Sell-Side Investment Banker Engagement Letter
Appendix 13A. Antitrust Provisions of the Whirlpool–Maytag Merger Agreement
Appendix 13B. Antitrust Provisions of the Dow Chemical–Rohm and Haas Merger Agreement
Appendix 14A. Solvency Opinions in Time’s Acquisition of Warner
Appendix 14B. Getty Images, Rollover Commitment Letter for Management Buyout
Appendix 14C. Getty Images, Equity Commitment Letters for Management Buyout
Appendix 14D. Getty Images, Senior Secured Credit Facilities Commitment Letter for Management Buyout
Appendix 14E. Pinnacle S-4 Exchange Offer in an “A/B” Exchange for Notes Issued in an LBO
Appendix 15A. Morgan Stanley’s Spin-Off of Discover
Appendix 15B. Discover’s Form 10 Registration Statement Filed Pursuant to Section 12 of the ’34 Act
Appendix 15C. AT&T–Comcast Spin-Off and Merger
Appendix 16A. TWA Bankruptcy Sale Under Section 363 to American
Appendix 16B. Lehman Bankruptcy Sale Under Section 363 to Barclays
Appendix 16C. Sears Bankruptcy Sale to ESL Hedge Fund in a Combined Section 363 Sale and G Reorganization
Appendix 17A. J.P. Morgan Chase–Bank One Merger of Financial Holding Companies
Appendix 18A. TXU LBO, Regulatory Approvals
Appendix 19A. InBev N.V./S.A., a Belgian Corporation, Acquires Anheuser-Busch, a U.S. Target, for Cash
Appendix 19B. Acquisition by Vodafone, a U.K. Company, of AirTouch, a U.S. Target, for Stock and Cash Under Section 368(a)(2)(E)
Appendix 19C. CFIUS Provisions of the March 2, 2017 Preliminary Proxy Statement and Merger Agreement for the Acquisition of MoneyGram, a U.S. Target, by Alipay, a U.K. Subsidiary of a Chinese Company
Appendix 20A. NASDAQ Stock Market Offer for London Stock Exchange Pursuant to U.K.’s City Code
Appendix 20B. GE’s Acquisition of the U.K.’s Amersham in a Scheme of Arrangement
Appendix 22A. Acquisition by British Telecom of MCI in a Forward Subsidiary Merger Under Section 368(a)(2)(D)
Appendix 22B. Acquisition By DaimlerChrysler of Chrysler and Daimler-Benz in a Combination “(B)” Reorganization and Section 351 Exchange
Appendix 22C. Acquisition by a Newly Formed Irish Holding Company of Both (1) Endo, a U.S. Corporation and the Real Acquirer, and (2) Paladin, a Canadian Corporation and the Real Target, Through a Structure Similar to Horizontal Double Dummy: Acquisition of (1) Endo in a Reverse Subsidiary Merger, and (2) Paladin in a Canadian Arrangement
Appendix 22D. Slides Illustrating (1) a Prototypical Inversion Transaction, and (2) the Impact of Treasury and IRS Notice 2014-52
Appendix 22E. Slides Illustrating (1) a Prototypical Inversion Transaction, and (2) the Impact of Treasury and IRS Notice 2015-79
Appendix 24A. MillerCoors LLC JV Formation Agreement
Appendix 24B. MillerCoors LLC JV Operating Agreement
Appendix 24C. Sprint Spectrum LP JV Agreement
Appendix 24D. Citigroup–Morgan Stanley JV Formation Agreement
Appendix 27A. Acquisition of Southern Plains Medical Center by First Physicians Capital Group
Appendix 27B. Acquisition of Hospital Corporation of America
Appendix 27C. Acquisition by RehabCare of Triumph Health Care
Appendix 27D. Pfizer Acquisition of Wyeth
Appendix 27E. Boston Scientific Acquisition of Guidant
Appendix 27F. Cigna’s Acquisition of Great-West Health Care
Appendix 28A. Pershing Square and Valeant’s Joint Bid for Allergan—Schedule 13D Filed, April 21, 2014
Appendix 28B. Pershing Square and Valeant’s Joint Bid for Allergan—Structure of Purchasing Entities and 13D Reporting Parties
Appendix 28C. Pershing Square/Valeant Joint Bid for Allergan—Percentage of Stock Owned from the Date of First Purchase to the 13D Filing Date
Appendix 28D. ICAHN Capital LP and Related Parties Acquisition of Stock of Family Dollar Stores—Form 13D, Filed May 27, 2014
Appendix 28E. ICAHN Capital LP and Related Parties Acquisition of Stock of Family Dollar Stores—Structure of Purchasing Entities and 13D Reporting Parties
Appendix 28F. ICAHN Capital LP and Related Parties Acquisition of Stock of Family Dollar Stores—Percentage of Stock Owned from the Date of First Purchase to the 13D Filing Date
Appendix 28G. Pershing Square/Valeant Joint Bid for Allergan; ICAHN Acquisition of Stock of Family Dollar Stores—Summary Data on Percentage of Stock Owned from the Date of First Purchases to the 13D Filing Dates
Appendix 28H. Form 13F Filed by Third Point Re Its Investment in Sotheby’s, for Quarter Ended March 31, 2013
Appendix 28I. Form 13G Filed by Morgan Stanley Re Purchase of Stock of Sotheby’s, February 3, 2014
Appendix 28J. Initial Schedule 13D Filed by Third Point Re Purchase of Stock of Sotheby’s, August 26, 2013
Appendix 28K. Letter from Third Point to Sotheby’s Concerning Sotheby’s Operations, Filed as Exhibit 99.3 to Amended Form 13D, October 2, 2013
Appendix 28L. Sotheby’s 2014 Proxy Statement, March 24, 2014
Appendix 28M. Third Point’s Proxy Statement Re Sotheby’s, March 28, 2014
Appendix 28N. Third Point Investor Presentation Re Proxy Contest, April 2014
Appendix 28O. Press Release and Settlement Agreement Between Third Point and Sotheby’s, Filed as Exhibits 99.7 and 99.8 to Third Point’s Amended Form 13D, May 6, 2014
Appendix 28P. Sullivan & Cromwell, LLP, Publication on Adjusting to Activist Shareholders, Published August 22, 2013