Recent months have seen several noteworthy developments regarding tender offers, “poison puts”, reverse triangular mergers, and litigation that will impact the negotiation and execution of future M&A transactions. These developments are summarized below.
1. Tender Offers -
Due largely to their timing advantages, tender offers have been used by strategic and financial buyers in numerous transactions to acquire control of public companies. It is unclear, however, whether tender offers will continue to be a popular transaction structure, at least when debt financing is required. On the one hand, recent developments in Delaware law with respect to “top-up options” should simplify tender offers and promote their use. On the other hand, a renewed focus by the U.S. Securities and Exchange Commission (the “SEC”) on financing conditions in tender offers may make these structures more complex when an acquirer needs to obtain financing to complete a transaction.
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