10 key closing issues as a result of COVID-19’s impact

10 key closing issues a result of COVID-19’s impact
By Ms. Mara H. Rogers & Ms. Amelia Y. Xu & Ms. Geetika Jerath

While the COVID-19 pandemic rattles markets, M&A deals continue, albeit slower than anticipated with more challenges than originally planned. There are ways to proceed cautiously without jumping towards termination as the sole option in these extraordinary circumstances. 

This paper discusses ten key legal issues and considerations for parties in addressing potential risks and problems in signed, but not closed, deals, and offers insights for parties to consider during renewed negotiations including...

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Proposed vertical merger guidelines reserve wide latitude for the FTC and DOJ

Proposed vertical merger guidelines reserve wide latitude for the FTC and DOJ
By Mr. Joel Mitnick & Ms. Ngoc Pham Hulbig

Vertical mergers will likely face less anticompetitive scrutiny compared to horizontal mergers, according newly proposed vertical merger guidelines from the Federal Trade Commission (FTC) and Department of Justice (DOJ). Previously, official guidance from both agencies was only available for proposed horizontal mergers, leaving merging companies and target companies uncertain of the regulatory hurdles they might face in an M&A transaction.

The new guidelines place a quasi-burden on the merging parties to...

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Managing spinoff transactions with a sophisticated tax overlay

Managing spinoff transactions with a sophisticated tax overlay
By Cathy Birkeland & Mark D. Gerstein & Ryan Maierson & Laurence J. Stein & Pardis Zomorodi & Alexa Berlin

To ensure the successful execution of a transaction for both SpinCo and RemainCo, both companies need to position the carveout to successfully operate as a stand-alone company.   

The authors of this paper look at the complex duties of care and loyalty that are unique to carveouts and consider the methods deal team should employ to structure this type of transaction, satisfy disclosure requirements, and ensure tax-free value creation through...

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Baking antitrust protections into merger agreements

Baking antitrust protections into merger agreements
By John R. Ingrassia

In recent years regulators have increasingly scrutinized mergers and forced parties to consider antitrust pressure before a deal’s basic terms are defined.

This paper discusses several clauses that should be carefully considered and negotiated in merger agreements when antitrust challenges are anticipated including efforts clauses, end dates, break or termination fees, material adverse event clauses, as well as...

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