Transaction insurance reshapes risk negotiations and post-close remedies

Transaction insurance reshapes risk negotiations and post-close remedies
By Ms. Elizabeth Cunnane & Mr. Saswat Bohidar & Mr. Christian McGrath

This session with Elizabeth Cunnane, Senior Vice President, M&A Group at Willis Towers Watson; Saswat Bohidar, Associate General Counsel, M&A and Ventures at Hewlett Packard Enterprise; and Christian McGrath, General Counsel & Managing Director at GTCR considered risk allocation frameworks.

The participants discussed the form and structure of closing conditions, looked at the increasing use of transaction insurance in high-value deals and in competitive processes, and discussed the strength of various protections and...

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Innovation in deal structures and forms of consideration

Innovation in deal structures and forms of consideration | M&A Conference at the University of Chicago
By Elizabeth Donley & Mr. Brett Shawn & Mr. Michael T. Wolf

This discussion at the M&A Conference at the University of Chicago examined deal structures and terms that may be employed to bridge gaps between buyers and sellers. 

Brett Shawn, Senior Vice President, Assistant General Counsel at Warburg Pincus; Michael Wolf, Vice President, Deputy General Counsel at Baxter International; and Elizabeth Donley, Partner at Hogan Lovells considered various forms of consideration and pricing formulations, including working capital and "locked-box" adjustments, fixed price/exchange ratio collars, valuation and earnout mechanisms, and other practical considerations relevant to M&A negotiations and...

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Mitigating global merger control and regulatory challenges

Mitigating global merger control and regulatory challenges | M&A Conference at the University of Chicago
By Peter D. Lyons & Mr. Charles Webb & Mr. Gil Ohana & Mr. Brendan Bowes

This session at the M&A Conference at the University of Chicago explored a range of innovative deal terms and methods for navigating regulatory challenges in domestic and cross-border deals. This session provided guidance on M&A provisions that anticipate protectionist views, antitrust challenges, and other regulatory reviews.

Chuck Webb, Senior Antitrust Attorney at FedEx; Gil Ohana, Senior Director, Antitrust and Competition at Cisco Systems; and Brendan Bowes, Associate General Counsel, Corporate, Securities and M&A at Archer Daniels Midland Company considered approaches for incorporating the risk of political and regulatory uncertainty into deal terms including 'best efforts' requirements, negotiating prospective antitrust remedies, and other...

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The effect of a pro-sandbagging clause on a fraud claim

The effect of a pro-sandbagging clause on a fraud claim
By Bryan M. Westhoff

Pro-sandbagging clauses are becoming an increasingly negotiated term in acquisition agreements designed to indemnify informed buyers.

A “pro-sandbagging” clause is a provision in the acquisition agreement preserving a buyer’s ability to bring a claim post-transaction even if they had knowledge of the issue prior to the closing.  This paper discusses the buyer’s and seller’s arguments regarding pro-sandbagging provisions in M&A agreements including...

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New provisions emerge to curtail the activities of net short investors

New provisions emerge to curtail the activities of net short investors
By Rob Mathews & Benjamin Bierwirth & Matthew Smith & Nicholas O'Grady

In recent years, bondholders have utilized new strategies to create net-short opportunities, sometimes to the detriment of other noteholders and the issuer itself. Using Windstream’s 2015 bankruptcy as an example, the authors of this paper note that bond issuers are increasingly grappling with how to protect their shareholders and other bondholders from exploitive net short noteholders. Contractual protections in the instrument appear to be the default solution in preventing certain noteholders from exploiting default and acceleration provisions to their sole benefit. 

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