Yesterday, Business Law Today, the publication of the ABA Business Law Section, published my article Fixing the Problem That Is “Agreement and Plan of Merger”. I recognized years ago that agreement and plan of merger was … problematic, but it was only while writing my recent critique of the Norfolk Southern merger agreement (go here for the related article in … Read More
Let’s revisit my Corporate Counsel Now article that was published a couple of weeks ago, Merger Agreements Are Poorly Drafted. Perhaps the most concentrated dose of dysfunction revealed in my analysis of the Norfolk Southern merger agreement is to be found in the “Structure” section. My comments in that section are limited to the bringdown condition. That part of a … Read More
From my perspective as someone trying to figure out how to make contract language clearer, a welcome development in Delaware caselaw was what the Delaware Court of Chancery had to say about the phrase in all material respects. The case is Akorn, Inc. v. Fresenius Kabi AG, No. CV 2018-0300-JTL, 2018 WL 4719347, at *85 (Del. Ch. 1 Oct. 2018), aff’d, … Read More
I’ll now revisit something I last wrote about in 2013: double materiality in the bringdown condition. (I see the term “double materiality” thrown around in other contexts, so I think it’s best to be specific.) The Theory Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified … Read More
A couple of months ago I did this blog post about the redundant reference-point exception in the bringdown condition. Today we revisit the bringdown condition to consider an issue involving how the bringdown condition is modified by materiality. The bringdown condition allows one side to use inaccuracy in the other side’s statements of fact (traditionally referred to as representations and … Read More
I’ve been working on an article on the word material, so that sent me back to my book The Structure of M&A Contracts. The book is due for an update, so I’d like to do a second edition sometime, one that makes it easier for people to buy the book! But I’ll use this post to revisit one point I … Read More
With some trepidation, I now tiptoe into law-and-economics territory. Specifically, how standards for statements of fact and preclosing obligations in mergers-and-acquisitions contracts relate to standards for conditions to closing. Widgetco and Acme (both private companies) enter into a contract under which Widgetco would acquire Acme. The contract provides for a delayed closing. Acme makes a statement of fact in the … Read More
If you’re weary of the shitshow, I suggest you check out the work of an exemplary public servant—the Delaware Chancery Court opinion by Vice Chancellor Laster in AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC (here), issued on 30 November 2020. It’s another epic Laster opinion, weighing in at 242 pages. The dispute involves the proposed purchase of … Read More
I recently mentioned in this post that my works were cited liberally in the Delaware Chancery Court’s high-profile opinion in Akorn, Inc. v. Fresenius Kabi AG (PDF here). I’ve now had occasion to look through the opinion; here are some thoughts. They reflect my interests: you can find no end of commentary if instead you’re interested in the broader implications of … Read More
File this under “Better late than never.” Today a reader told me they couldn’t find online anywhere the table of contents of my book The Structure of M&A Contracts. That was an oversight on my part, so here it is. For more about the book, go here. If you can tolerate the extra hoops you have to jump through, I … Read More
