On Friday, Corp Fin released some new CDIs relating to the proxy rules. The CDIs can all be found under the caption Proxy Rules and Schedule 14A, and all are new with one exception for a newly revised CDI under Rule 14a-6. Universal proxy is once again a hot topic, and there are three new CDIs on universal proxy to add to your collection. To learn more about these new CDIs please see the recent PubCo blog post ..read more

Compensation matters, including retention packages, equity treatment and related disclosure, are always key negotiating points in M&A transactions. In a challenging M&A market that is stifled by overall volatility and uncertainty, high interest rates, and reduced valuations, issues related to compensation may become more fraught as parties navigate alternative transaction structures and forms of noncash deal consideration. In this post, we discuss compensation challenges in M&A deals in a depressed market and how dealmakers can address these issues. Challenge #1: Managing equity in ..read more

During a panel at the October 2023 Berkeley Fall Forum on Corporate Governance, Delaware Court of Chancery Chancellor Kathaleen St. J. McCormick and Vice Chancellor Paul Fioravanti, along with lawyers Shannon Eagan (Cooley), Elena Norman (Young Conaway) and Randall Baron (Robbins Geller Rudman & Dowd), shared their views on recent developments in Delaware corporate governance law. Catch up on the “state” of Delaware – and what’s been happening at the Court of Chancery – in this post on Cooley’s Securities Litigation + Enforcement blog ..read more

In a recent installment of Cooley’s Market Talks virtual series Jamie Leigh, partner and co-chair of the M&A practice at Cooley, joined Dave Peinsipp, partner and co-chair of the capital markets practice at Cooley, and Umi Mehta, global head of tech private equity and venture capital investment banking at Morgan Stanley, to discuss the evolving role of private equity players in the tech marketplace. View the recording here ..read more

In all economic cycles, engaged public company boards and management teams do their homework on the wide range of potential strategic opportunities. In the current market environment, however, we have observed that an increasing number of companies and their boards are actively progressing (or taking steps to formulate a plan for exploring) multiple alternatives at the same time. The goal? To maximize the speed and likelihood of executing a successful strategy all while maintaining optionality – and often working against liquidity constraints or other factors necessitating a tight timetable. T ..read more

Cooley’s CFIUS team recently published an updated Committee on Foreign Investment in the United States overview page, which covers the introduction of “mandatory” CFIUS filing requirements by the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). The refreshed overview also summarizes the CFIUS regime generally – including a discussion of how the US government assesses national security risks – as well as the CFIUS filing process, and notable differences between the two types of CFIUS filings (i.e., short-form Declarations and long-form Notices). Check out our CFIUS overvi ..read more

In the wake of major bank failures in the US, the Department of Justice (DOJ) has signaled that it plans to step up antitrust enforcement of bank mergers. In June 2023, the DOJ’s Assistant Attorney General for Antitrust Jonathan Kanter delivered a speech at the Brookings Institution, providing listeners with insights into significant changes in the way the DOJ and bank regulators are reviewing proposed bank mergers.  To learn more please see the recent client alert ..read more

On 13 July 2023, the Court of Justice of the European Union (CJEU) handed down its first ruling on the European Union Foreign Direct Investment Screening Regulation, which entered into force in October 2020. In short, the CJEU clarified in Xella Magyarország that the regulation does not apply to acquisitions by EU-based buyers, regardless of whether they are ultimately controlled by non-EU shareholders. Cross-border acquisitions by EU-based buyers are subject to EU law on the freedom of establishment. While EU Member States are free to decide – and pursue in investment screening – their own pu ..read more

The European Union’s new screening tool for third-country subsidies introduces a novel form of mergers & acquisitions scrutiny. Companies worldwide need to account for timing and execution risks arising from this system when M&A deals involve businesses with activities in the EU. The EU’s Foreign Subsidies Regulation (FSR) applies to deals agreed after 12 July 2023, and the European Commission (EC) now has the power to ex officio investigate potentially distortive subsidies granted by third countries. The FSR takes full effect on 12 October 2023, when certain M&A deals mu ..read more

The US Department of Justice and Federal Trade Commission released draft revised merger guidelines in an effort to support the Biden administration’s aggressive antitrust enforcement agenda. The draft guidelines, which are subject to public comment for 60 days, spell out novel theories of harm that the Biden DOJ and FTC have pursued in recent enforcement actions and speeches. To learn more please see the recent client alert ..read more