Merger Agreements

News & Analysis as of

Black Horse Capital, LP v. Xstelos Holdings, Inc., C.A. No. 8642-VCP (Del. Ch. Sept. 30, 2014) (Parsons, V.C.)

In this decision, the Court of Chancery granted defendants’ motion to dismiss, finding that it could not enforce the plaintiffs’ alleged oral agreement where the related written agreements make no reference to any prior...more

ev3, Inc. v. Lesh, C.A. No. 515, 2013 (Del. Sept. 30, 2014)

In this en banc Memorandum Opinion, the Supreme Court reversed the Superior Court’s denial of the defendant-below’s motion for a new trial following a jury verdict and remanded the case for a new trial. The Supreme Court...more

Survival of Non-Binding LOI Provisions Does Not Make Them Binding

On September 30, 2014, the Delaware Supreme Court reversed a jury verdict finding that ev3, Inc. breached its contractual obligation to the shareholders of Appriva Medical, Inc., a company purchased by ev3. In ev3, Inc. v...more

Merger Discussions & Non-Compete Agreements: A Recent Case from the EDNY

A recent case out of the Eastern District of New York raises interesting questions about the use of non-compete agreements in connection with merger talks. Let’s take a look: Calico Cottage, Inc. is a New York company...more

Delaware Formally Adopts Proposed Statutory Amendments Governing Mergers Following the Completion of a Tender Offer

The governor of Delaware recently signed into law previously proposed amendments to Section 251(h) of the Delaware General Corporation Law (“DGCL”), which make Section 251(h) more accessible to deal parties by...more

Top Ten Issues when Drafting International Agreements – Part I

Cross-border agreements come in all shapes and sizes, from manufacturing agreements to joint ventures, employment contracts to merger agreements. Each type has its own quirks, but we can boil down the most common legal issues...more

A Shot In A Mug Of Beer May Not Be The Answer To This Exclusive Forum Bylaw Case

In March, Safeway and Albertsons announced that they had entered into a definitive merger agreement. As night follows day, litigation ensued. At least 12 class action complaints were filed by alleged stockholders of...more

And You Thought Dissenters’ Rights Didn’t Apply To Delaware LLCs

Delaware’s Limited Liability Company Act provides that a limited liability company agreement or an agreement of merger or consolidation or plan of merger may provide for appraisal rights. 6 Del. Code § 18-210. Does this...more

Thresholds Do Matter – Choosing too Low a Threshold in an Ordinary Course of Business Provision Can Up Your Risk of “Gun Jumping”

Soon after someone settles “gun jumping” charges, client alerts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around. These “alerts” usually recite facts alleged in the complaint,...more

European Commission reduces notification burden for more mergers

SUMMARY - The European Commission ("Commission") has announced its plans to both reshape the simplified merger notification process within the framework of the EUMR1 in order to extend the option of simplified...more

Chancery Court Takes Firm Stance On Seller’s Pre-Closing Privileged Communication

A recent Delaware Chancery Court opinion highlights the risk to sellers and their advisors that pre-closing communications could become evidence in a post-closing lawsuit related to the transaction. The opinion, Great Hill...more

Cooper Tire & Rubber Co. v. Apollo (Mauritius) Holdings Pvt. Ltd., C.A. No. 8980-VCG (Del. Ch. Oct. 25, 2013) (Glasscock, V.C.)

In this letter opinion, Vice Chancellor Glasscock denied a motion for judgment on the pleadings filed in connection with an expedited action in which the plaintiff Cooper Tire & Rubber Co. seeks specific performance of its...more

Delaware Court Confirms High Bar To Escape Deal

Two recent Delaware Chancery Court opinions, issued on October 25 and November 9, 2013, illustrate the high bar that buyers and sellers must clear to escape an unfavorable deal or obtain a court order requiring a deal to...more

Delaware Legislature Adopts Amendments to Delaware General Corporation Law

Effective as of August 1, 2013, the Delaware legislature adopted several significant amendments to the Delaware General Corporation Law (DGCL). ...more

"Amendments to Delaware General Corporation Law to Facilitate Short-Form Mergers in Two-Step Transactions"

On August 1, 2013, new Section 251(h) of the Delaware General Corporation Law (the DGCL) becomes effective, which will allow consummation of second-step mergers without stockholder approval following a tender or exchange...more

Corporate Mergers Can Be Complex

Mergers and acquisitions are a normal part of the business landscape in California and across the U.S. The State of California defines a merger as …a combining of corporations in which one of two or more corporations...more

Koehler v. NetSpend Holdings, Inc., C.A. No. 8373-VCG (Del. Ch. May 21, 2013) (Glasscock, VC)

In this memorandum opinion, the Court of Chancery declined to enjoin Total System Services’ (“TSYS”) acquisition of NetSpend Holdings, Inc. (“NetSpend”) because, even though the Court concluded that the NetSpend board (the...more

In re Plains Exploration & Production Co. S’holder Litig., Consol. C.A. No. 8090-VCN (Del. Ch. May 9, 2013) (Noble)

In this opinion, the Court of Chancery denied the motion of stockholders of Plains Exploration & Production Company (“Plains”) to enjoin preliminarily the proposed merger (the “Merger”) between Plains and Freeport-McMoRan...more

Applicability of Proposed Amendment to Section 251 of the DGCL to Hostile Offers

The Delaware State Bar Association has recently proposed an amendment to the Delaware General Corporation Law (the “DCGL”) that would significantly modify the way acquisitions of Delaware public companies are effected by...more

Sample Antitrust-Related Provisions in M&A Agreements--2013 Edition

This note provides a much expanded sample of antitrust-related provisons in M&A agreements over the one we posted in August 2012. As before, the sample provisions have been taken (sometimes with a little modification) from...more

Winshall v. Viacom Int'l Inc., C.A. No. 6074-CS (Del. Ch. Dec. 12, 2012) (Strine, C.)

In this memorandum opinion, the Court of Chancery held that stockholders of an acquired video game developer were not required to indemnify the acquirer for losses it incurred defending claims based on intellectual property...more

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