The “crown jewel” lock-up, a staple of high-stakes dealmaking technology in the 1980s M&A boom, has been showing some signs of life in the contemporary deal landscape, albeit often in creative new forms. As traditionally conceived, a crown jewel lock-up is an agreement entered into between the target and buyer that gives the buyer an option to acquire key assets of the target (its “crown jewels”) separate and apart from the merger itself. In the event that the merger fails to close, including as a result of a topping bid, the original buyer retains the option to acquire those assets. By agreeing to sell some of the most valuable pieces of the target business to the initial buyer, the traditional crown jewel lock-up can serve as a significant deterrent to competing bidders and, in some circumstances, a poison pill of sorts.

Given the potentially preclusive nature of traditional crown jewel lock-ups, it is not surprising that they did not fare well when challenged in the Delaware courts in the late 1980s. As the Supreme Court opined in the seminal Revlon case, “[W]hile those lock-ups which draw bidders into a battle benefit shareholders, similar measures which end an active auction and foreclose further bidding operate to the shareholders detriment.” Building on the holding in Revlon, the court in Macmillan said that “Even if the lockup is permissible, when it involves ‘crown jewel’ assets careful board scrutiny attends the decision. When the intended effect is to end an active auction, at the very least the independent members of the board must attempt to negotiate alternative bids before granting such a significant concession.” Although crown jewel lock-ups fell out of favor following these rulings, modern and modified versions of the traditional crown jewel lock-up have been finding their way back into the dealmakers’ toolkit.

…continue reading: Crown Jewels — Restoring the Luster to Creative Deal Lock-ups?

Practitioners and academics have long assumed that markets value the deal-specific legal terms of merger agreements yet have failed to subject this premise to empirical scrutiny. Mergers are high-stakes events, so it is unsurprising that the conventional wisdom posits that value is at stake in drafting acquisition agreements and negotiating conditions, “fiduciary out” clauses, and deal protection provisions. The question is whether financial markets price the highly negotiated legal terms of acquisition agreements or only value the financial terms forged by management and bankers. The challenge in answering this question is the difficulty in separating the market impact of the merger announcement (and disclosure of financial terms) from the disclosure of the legal terms, since these events occur in close proximity.

We conduct an empirical study that shows that markets do not respond in an economically significant way to the deal-specific legal terms of M&A agreements. We collected a data set of public company cash mergers spanning the decade from 2002 to 2011 and applied a modified event study to test statistically whether the market reacted to the disclosure of merger agreements. We analyze market reactions by exploiting the (small) temporal gap between the announcement of pending mergers (which lays out their financial terms) and the disclosure of acquisition agreements (which delineate the legal terms) typically one to four trading days later. We find that markets react almost exclusively to the initial merger announcement, and there is no economically consequential market reaction to the disclosure of the acquisition agreement. This finding implies that the extensive negotiations over deal-specific legal terms are not priced into financial market valuation.

…continue reading: The Merger Agreement Myth

Acquisition agreements often contain provisions that restrict or prohibit the payment of “consequential,” “special,” or “incidental” damages for breach. [1] Principals and their counsel may intend that these provisions prevent liability arising from unknown and unforeseeable future events; however, because these terms are poorly understood in the context of acquisition agreements, the exclusion of these categories of damages may have unexpected consequences for the parties to a transaction. Buyers and sellers should carefully weigh the effect of these damage-limiting provisions and consider alternative, more clearly defined provisions to limit damages under their acquisition agreements.

General Contract Damages

Before examining contract provisions limiting damages, it is important to review briefly the basic principles for recovery of damages due to breach of contract. Damages arising out of the breach of a contract are generally limited by the principles set forth in the English case of Hadley v. Baxendale. [2] Hadley created a rule with two branches: (i) a party may recover for losses that directly and naturally arise from the breach of a contract and (ii) a party may recover for losses arising from special circumstances surrounding the breach to the extent that the breaching party knew of the circumstances at the time the contract was made. [3] Consistent with Hadley, under the default rules of most jurisdictions, recoverable losses arising under a breach of contract are limited to those damages that are reasonably foreseeable to the breaching party. [4]

…continue reading: Avoiding Unintended Consequences of Damage Waiver Provisions

On May 4, 2012, Chancellor Strine of the Delaware Court of Chancery issued an opinion finding that Martin Marietta Materials, Inc. breached two confidentiality agreements with Vulcan Materials Company when it commenced a $5.5 billion hostile bid for Vulcan in December 2011. Despite the absence of an explicit standstill provision in either confidentiality agreement, which were signed by the parties in the spring of 2010 in connection with then-friendly discussions about a possible merger, the Court enjoined Martin Marietta for four months from pursuing its bid for Vulcan. We expect the Court’s decision to influence the negotiation of M&A confidentiality agreements. See Martin Marietta Materials, Inc. v. Vulcan Materials Co., No. 7102-CS (Del. Ch. May 4, 2012).

The Court concluded that Martin Marietta breached the confidentiality agreements by using confidential information in determining whether to launch a hostile bid and disclosing extensive details regarding the confidential merger discussions and other confidential information in its securities filings and other communications. The Court’s opinion highlights a number of considerations that M&A practitioners should bear in mind when drafting and negotiating confidentiality agreements:

…continue reading: Delaware Court Issues Guidance about M&A Confidentiality Agreements

Recently, in the Mergers and Acquisitions course at Harvard Law School, three preeminent M&A practitioners discussed the Merger Agreement as a Contract with Vice Chancellor Leo Strine, Jr., who teaches the class. The panelists were Rick Climan, a partner in the Mergers and Acquisitions group at Dewey & LeBoeuf LLP; Faiza Saeed, a partner in the Corporate Department of Cravath, Swaine & Moore LLP; and Kim Rucker, Senior Vice President and General Counsel of Avon Products, Inc.

The panel went through the main parts of an acquisition agreement, including:

• Representations and warranties;
• Disclosure schedules (“The power is in the disclosure schedules”, remarked Kim);
• Pre-closing covenants that apply between signing and closing, including the strength of covenants and the difference between covenants and closing conditions;
• Closing conditions, the standards to which they must be met, and the risk of a deal failing to close.  Faiza gave the example of the breakdown of the General Electric-Honeywell transaction, which led to a discussion of regulatory risks and their effect on the transaction, and the consequent standards of covenants to obtain necessary consents, such as “hell-or-high-water” provisions.

…continue reading: The Merger Agreement as a Contract