SRS Acquiom recently released its annual M&A Deal Terms Study for 2024 (available for download). This year, SRS Acquiom analyzed more than 2,100 private-target acquisitions that closed from 2018 through 2023. Here are some of the key findings summarized in the introduction: – Strategic buyers (both U.S. public and private) were more active in 2023, with ..read more

This survey by BCG and Gibson Dunn concludes that ESG due diligence has become “indispensable” for M&A. Two-thirds of survey respondents have engaged on ESG topics during transactions, and 75% reported that they identified a material ESG issue in a deal in the last three years because they conducted due diligence. Respondents generally felt that ..read more

Himawan v. Cephalon, Inc. (Del. Ch.; 4/24) presents a familiar fact pattern in life-sciences M&A. The target biotech company was developing one main asset for two possible indications. In its acquisition by Cephalon, its stockholders were entitled to “milestone” payments tied to regulatory approval of the asset for those indications. The merger agreement left the ..read more

Wachtell Lipton recently published the 2024 edition of its 237-page “Takeover Law and Practice” publication.  It addresses recent developments in M&A activity, activism and antitrust, directors’ fiduciary duties in the M&A context, key aspects of the deal-making process, deal protections and methods to enhance deal certainty, takeover preparedness, responding to hostile offers, structural alternatives and ..read more

The March-April Issue of the Deal Lawyers newsletter was just posted and sent to the printer. This issue includes the following articles: – Lessons From the Activision-Microsoft Merger – Delaware Chancery’s Moelis II Decision Provides Cautionary Tale for Boards and Activists – Sears and (the Limited Scope of) Controlling Stockholder Fiduciary Duties – Delaware Chancery Reminds Us That ..read more

A recent lawsuit involving a buyer’s attempt to terminate a deal based on a seller’s alleged non-compliance with the purchase agreement’s financing cooperation covenant raises the question of when a buyer should have the right to walk away from a deal on that basis. Here’s a description of the lawsuit from this article in Weil’s ..read more

Section 546(e) of the Bankruptcy Code provides a safe harbor from constructive fraudulent transfer claims for transfers that are settlement payments or payments related to a securities contract, when those transfers are “made by or to (or for the benefit of) … financial institutions.”  Most commonly, the safe harbor is asserted to provide protection against ..read more

Yesterday, the FTC adopted a final rule banning most non-competes in a 3-2, party line vote.  Like the proposed rule, the final version includes an exception for non-competes entered into in connection with the bona fide sale of a business. The carve-out is contained in Section 910.3(a) of the rule, and here’s the relevant language ..read more

Despite a bit of a checkered reputation, non-SPAC reverse mergers are still a thing, and this excerpt from a recent WilmerHale memo (p. 14) says that there’s been an uptick in these deals and that, for some companies, they are an attractive alternative to an IPO: The trend of declining public company valuations (including a ..read more

The rise of RWI has been one of the biggest stories in private M&A over the past decade or so, but according to a recent SRS Acquiom study, RWI usage on private deals appears to be plateauing. The study says that post-closing issues may be a big reason that dealmakers have tempered their enthusiasm for ..read more