After the COVID-19 pandemic significantly curtailed US M&A activity in the first half of 2020, M&A deal activity improved significantly in the last half of 2020 and continued to be strong throughout 2021. The aggregate value of all US M&A transactions announced in 2021 was nearly double the value of such transactions in 2020. The total number of US M&A transactions announced in 2021 was more than 30% above the number of such transactions in 2020.

Special purpose acquisition companies (SPACs) saw a significant re-emergence in 2020 and billions of dollars continued to flood into these newly formed companies in 2021. The number of acquisitions of public companies completed by SPACs in 2021 was nearly triple the number of such acquisitions completed in 2021. However, by the second half of 2021, a majority of the outstanding SPACs had failed to find an appropriate target company willing to be acquired, many SPAC valuations were below the value of their initial investments, and increased regulatory investigations of some SPAC transactions all contributed to a substantial lessening of enthusiasm in the SPAC market.

In addition, in 2021, environmental, social and governance (ESG) considerations continued to remain a focal point for boards of directors as they dealt with major impacts of the pandemic on their employees, customers and the communities in which they operate, and ESG considerations accordingly became more prominent in M&A transactions, including in conducting ESG-focused due diligence, allocating ESG-type risks in transaction documents, and implementing post-closing ESG integration.

In 2021, the leading sectors for US M&A activity by aggregate transaction value were technology, media and telecommunications (TMT); industrials and chemicals; financial services; and pharma, medical and biotech (PMB). The leading sections by transaction volume were TMT; industrials and chemicals; business services; and PMB.

There are a number of transaction structures that can be used to acquire a US company.

Acquisitions of Private Companies

An acquisition of a privately owned company is often structured as a stock or asset purchase.

Stock purchases

In a stock purchase, the buyer will purchase the target company’s outstanding stock directly from its shareholders pursuant to a stock purchase agreement signed by the buyer and the target shareholders. Where a privately owned company has a large number of shareholders, a statutory merger (described below) is often used in lieu of a direct stock purchase to ensure that the buyer will acquire all of the target’s outstanding stock.

Asset purchases

In an asset purchase, the buyer purchases the target company’s assets (and often assumes the target company’s liabilities) pursuant to the terms of an asset purchase agreement signed by the buyer and the target company. If the target company is selling all or substantially all of its assets, the approval of the target company’s shareholders is generally required under state law. The asset purchase structure allows parties to tailor the specific assets and liabilities to be included within and/or excluded from the scope of a transaction and is therefore often used when a buyer and seller have agreed that the seller will retain certain liabilities of the target company.

Acquisitions of Public Companies

An acquisition of a public company is generally structured as a statutory merger, often referred to as a “long-form” or “one-step” merger, or as a combination of a tender offer and a statutory merger, often referred to as a “two-step” merger.

One-step merger

In a one-step merger, the target company will merge with the buyer (or a subsidiary of the buyer) and the target company’s shareholders will receive the merger consideration in exchange for their shares by operation of law. A one-step merger is implemented pursuant to a negotiated merger agreement that is signed by the buyer and the target company and must be submitted to the target company’s shareholders for approval.

Two-step merger (with tender offer)

In a two-step merger, shareholders are first asked to tender their shares into a tender offer in exchange for the offered consideration. A tender offer is an offer made by the buyer directly to the target company’s shareholders to purchase their shares. In a negotiated transaction, the buyer and target company will negotiate the terms of the offer and the target company’s board of directors will recommend that shareholders accept the offer. Tender offers do not, however, need to be approved by the target company’s board of directors and, therefore, they are often used in “hostile” transactions. Tender offers are referred to as exchange offers where the consideration includes equity securities of the buyer.

The second step of a two-step merger is a statutory merger, used to acquire any remaining shares held by shareholders that did not participate in the tender offer (often referred to as a “squeeze-out” merger). In a negotiated transaction, the merger agreement will expressly provide for this second step and shareholders in the merger will receive the same consideration as those shareholders who tendered shares into the tender offer.

The primary regulator of the US federal securities laws is the Securities and Exchange Commission (SEC). The federal securities laws govern many facets of M&A activity involving US public companies and the purchase and sale of securities, including the information that must be provided to shareholders being solicited to vote to approve a statutory merger or to participate in a pending tender offer, as well as the procedures that must be followed by both the buyer and the target company in the conduct of a tender offer to the target company’s shareholders.

The substantive corporate law of the state of incorporation of the target company will regulate a wide variety of matters related to M&A transactions involving both publicly traded and privately owned companies, including the level of shareholder approval that is required for certain transactions, the applicable fiduciary duties of the directors of the target company in considering and approving a transaction, and the mechanics relating to the convening of shareholders’ meetings and providing information to shareholders in connection with the transaction. In addition, certain state laws (often referred to as “blue sky” laws) govern issues relating to the sale and purchase of securities in that particular state. Delaware is the state of incorporation for more than half of US public companies, including more than 66% of Fortune 500 companies. Consequently, Delaware corporate law and decisions of Delaware courts in cases involving M&A transactions have significant influence over practices in the USA, generally.

US federal antitrust laws are also relevant to most M&A transactions and require filings with the Federal Trade Commission (FTC) or Department of Justice (DOJ). Stock exchange rules (such as those of the New York Stock Exchange and the Nasdaq Stock Market) can also be relevant to M&A transactions involving US public companies, including whether a vote of the buyer’s shareholders is required if the buyer is issuing more than 20% of its outstanding shares in the transaction.

More broadly, depending on the particular circumstances of a transaction, there are regulators and regulations at both the federal and state level relating to employee benefits, environmental and tax matters (among others) that may be implicated.

Transactions involving foreign investment in target entities where US national security could be impacted are potentially subject to restriction. Under US law, the US President is empowered to review the national security implications of acquisitions of, or investments in, US businesses by non-US persons and may impose conditions on, or prohibit or even unwind, such transactions when they threaten US national security. The President has delegated these national security review authorities to the Committee on Foreign Investment in the United States (CFIUS), an inter-agency committee chaired by the US Department of the Treasury.

National security concerns can be implicated by transactions involving a broad range of companies, including those in the defence, technology, infrastructure, energy, telecommunications and financial services industries, among others. To avoid the uncertainty imposed by the possibility that a transaction may be prohibited or unwound, parties often voluntarily make a filing to CFIUS requesting review of a proposed transaction. Once cleared by CFIUS, a transaction is insulated from further US national security review or from being prohibited or unwound.

Beyond CFIUS, there are also specific restrictions that can be applicable to foreign investment in certain US shipping, aircraft, communications, mining, energy and banking assets. There are also restrictions applicable to foreign investment in certain US entities that contract with the US government.

In addition, the Foreign Investment in Real Property Tax Act imposes a tax on dispositions (both direct and indirect) of real property located within the USA by certain non-US persons and entities. While this is not an actual restriction on transactions, it can be a factor for non-US persons and entities to consider in the context of the possible acquisition of US real property (or companies holding US real property).

The Clayton Act and the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) together set forth the principal antitrust laws applicable to business combinations in the USA. The Antitrust Division of the DOJ and the FTC have concurrent general jurisdiction to enforce the antitrust laws.

Review of Business Combinations

The HSR Act enables the DOJ and FTC to review business combinations for possible anti-competitive effects before the transaction closes. This is accomplished by requiring that parties to transactions that meet certain valuation thresholds (beginning at USD101 million effective from 23 February 2022) notify the FTC and DOJ and observe waiting periods prior to the closing of the transaction. In the case of transactions that do not require a lengthy review, the applicable waiting period will generally be 30 days post-notification unless it is terminated earlier by the reviewing agency.

The initial HSR waiting period may be extended if the reviewing agency issues a request for additional information or documentary material, usually called a “second request”, which begins a second-phase investigation. A second request may be issued if, for example, the parties have overlapping product lines in a concentrated market or if customers express concern about the competitive effects of the acquisition. If a second request is issued, the waiting period typically does not terminate until 30 days after all the parties have complied with the second request. It typically takes parties two to four months to comply with a second request, although the time period may be much longer.

Potential actions by reviewing agency

At the conclusion of its investigation, the reviewing agency will take one of three possible courses of action. Firstly, it may close its investigation without taking any further action. Secondly, it may allow the transaction to close while insisting on certain structural remedies, such as divestitures of facilities or product lines, or behavioural remedies, such as transparency or non-discrimination requirements, to mitigate the anti-competitive effects of the transaction. Thirdly, the agency may seek to prohibit the parties from closing by initiating proceedings in a US federal district court.

The DOJ and the FTC also have the ability to review business combinations that are not subject to the notification and waiting period requirements of the HSR Act, as well as business combinations that have already been consummated.

In connection with M&A transactions, buyers should consider regulations and other impacts with respect to employment, labour, employee benefits and compensation matters. Both federal and state, as well as local, laws can be implicated with respect to these matters.

Employment and Labour

Employment arrangements in the USA are generally “at will”. Buyers need to consider worker classification (ie, whether the service provider is properly classified as an employee or a contractor), which may differ based on the state of employment, and proper visa status of workers. Buyers should be aware of the Worker Adjustment and Retraining Notification (WARN) Act and similar state laws that may give employees the right to early notice of impending lay-offs or plant closings (or salary in lieu of notice). Buyers should also be mindful of sellers that utilise the services of a professional employer organisation (PEO) to provide certain human resources functions, as such arrangements may create a co-employment relationship or trigger other analyses regarding benefit-plan compliance.

Buyers need to review employee equity plans and the impact of a change of control on outstanding employee equity.

Employees may be subject to restrictive covenants, including non-compete and non-solicit agreements, either under agreements in place prior to a transaction or under agreements that the buyer intends to put in place in connection with a transaction. The enforceability of such agreements is determined on a state-by-state basis, with California being one of the most restrictive.

Employee benefits

Buyers should be aware of the Employee Retirement Income Security Act (ERISA), which governs the operation and terms of certain employee benefit plans, including their treatment in connection with transactions.

Health plans must be reviewed for compliance with the Affordable Care Act (ACA), which includes certain benefits mandates. The parties must also understand their obligations with respect to the Consolidated Omnibus Budget Reconciliation Act (COBRA) and similar state laws that provide benefit continuation coverage after termination of employment. Certain states may also require the payout of accrued leave or other benefits.

Employee compensation

Finally, buyers should evaluate the target’s prior compliance with the US federal tax code (the “Code”) and the tax impact of transaction compensation. Section 280G of the Code regulates “golden parachute” payments made to certain key employees in M&A transactions. Section 409A of the Code regulates non-qualified deferred compensation and imposes a steep excise tax on non-compliant compensation. The Code may impact decisions on post-closing employment arrangements, including employment agreements, retention plans or agreements, and equity compensation. Equity grants must also comply with federal securities laws and similar state “blue sky” laws, which require securities granted to be registered or to fit within an exemption.

See 2.3 Restrictions on Foreign Investments.

A significant recent legal development related to M&A involved the first finding by a Delaware court that a material adverse effect (MAE) had occurred in the time between the announcement of a transaction and its closing, entitling an acquirer to terminate its acquisition agreement. The absence of an MAE having occurred with respect to a target’s business is a customary closing condition found in agreements governing US M&A transactions.

In its October 2018 decision in Akorn, Inc v Fresenius Kabi AG, the Delaware Court of Chancery found that Akorn’s decline in financial performance since the parties signed their merger agreement was material, and that the underlying causes of the drop in Akorn’s business performance posed a material, durationally significant threat to Akorn’s overall earnings potential. The Chancery Court’s decision, affirmed by the Delaware Supreme Court in December 2018, confirms that an MAE may be recognised in Delaware and provides helpful guidance as to the quantitative and qualitative analysis of what constitutes an MAE.

In 2020, the US Department of the Treasury issued regulations that significantly expanded the jurisdiction of CFIUS to allow it to review minority, non-controlling investments in certain US businesses developing or producing critical technologies; owning or operating US critical infrastructure assets; and possessing or collecting sensitive personal data of US citizens (previously, only investments that would result in foreign “control” of a US business were reviewable).

The regulations also mandate CFIUS filings (which were formerly only elective) for many foreign investments in US businesses producing or developing certain critical technologies and for transactions in which a foreign government-controlled entity acquires control of certain US businesses.

The majority of acquisitions in the USA are mutually agreed (a negotiated transaction) and do not involve the buyer building a stake in the target prior to the transaction.

In a hostile or otherwise unsolicited offer, it is common for a bidder to acquire a de minimis stake in a target for the purpose of having the ability, in the capacity of shareholder, to pursue litigation against the target or to seek to review its books and records. However, acquiring a significant stake prior to launching an offer for a US public company is less customary in light of the following considerations.

• Firstly, the acquisition of voting securities of a US company having an aggregate value of greater than an amount set annually by the FTC (USD101 million effective from 23 February 2022) typically requires antitrust approval under the HSR Act; seeking that approval would result in disclosure to the target of the bidder’s intention to acquire the securities.
• Secondly, acquisition of beneficial ownership of more than 5% of a class of equity voting securities of a US public company requires public disclosure of the acquisition through a filing with the SEC.
• Thirdly, bidders who have engaged in negotiations with a target may be subject to confidentiality agreements which contain restrictions on acquiring the target’s shares, or may have obtained material non-public information regarding the target that prohibits the bidder from trading in the target’s securities under US insider trading laws.
• Finally, a number of states, including Delaware, have “anti-takeover” statutes that prohibit or restrict a shareholder that has acquired a specified amount of a company’s shares (15% in Delaware) from acquiring additional shares for a significant period of time (three years in Delaware) unless certain conditions are met (such as the approval of the acquisition by the company’s board of directors and by a supermajority vote of the shareholders).

Federal securities laws require that any person who acquires beneficial ownership of more than 5% of the outstanding shares of a class of US public company voting equity securities must report the acquisition by filing a Schedule 13D with the SEC within ten days of the acquisition. A beneficial owner of a security includes any person who, directly or indirectly, has or shares either:

• the power to vote or to direct the voting of the security; or
• the power to dispose or direct the disposition of the security. 

Filing a Schedule 13D results in public disclosure of the acquisition, including the required disclosure of the purpose and funding of the acquisition and the filer’s plans regarding control of the target company. Once a Schedule 13D has been filed, amendments must be filed promptly after the occurrence of any material change in the facts set forth therein. Passive investors meeting certain requirements who would otherwise be required to file a Schedule 13D are permitted to file a Schedule 13G, which contains less onerous disclosure requirements than a Schedule 13D, but a stakebuilding strategy is not a passive investment intent.

US public companies do not directly introduce different rules than those mandated by federal securities laws in respect of thresholds requiring public reporting to the SEC. However, target companies can indirectly seek to supplement these rules by creating additional hurdles to stakebuilding which are tied to ownership thresholds, such as adopting a shareholder rights plan (ie, a “poison pill”); see 9.3 Common Defensive Measures.

Dealings in derivatives are allowed in the USA (subject to applicable restrictions imposed by laws regulating insider trading).

Where derivatives grant the holder the right to acquire an underlying equity voting security within 60 days, the underlying equity securities are considered “beneficially owned” for purposes of determining whether the holder owns more than 5% of the outstanding shares of a class of US public company equity voting securities that must be disclosed in a Schedule 13D. However, derivatives that are cash-settled (ie, cannot be settled in equity voting securities) are generally not considered to be beneficially owned and are not, therefore, generally required to be taken into account in determining whether a Schedule 13D is required to be filed. If a Schedule 13D is otherwise required to be filed, the filer must describe arrangements relating to the company’s securities, which would include cash-settled derivative contracts. The impact of derivative transactions on Form 13F reporting obligations depends on a number of factors and therefore needs to be analysed in the specific circumstances of each transaction.

With respect to US antitrust law, the acquisition of derivatives is generally not reportable under the HSR Act so long as the derivative instruments do not carry the present right to vote for directors of the subject company. However, depending on the underlying security, conversion or exercise of the derivative instrument could be reportable.

Shareholders with beneficial ownership of more than 5% of the outstanding shares of a class of US public company equity voting securities (which triggers the Schedule 13D filing discussed in 4.2 Material Shareholding Disclosure Threshold) or that wish to acquire more than an amount set annually by the FTC of a company’s voting securities (which triggers the requirement to obtain approval under the HSR Act; see 2.4 Antitrust Regulations and 4.1 Principal Stakebuilding Strategies) must make appropriate disclosures to the SEC and/or US antitrust authorities concerning the purpose of their acquisition and their intention regarding control of the company.

Federal securities laws require public companies to disclose a material transaction upon entering into a definitive transaction agreement (ie, the merger agreement, share purchase agreement, asset purchase agreement or similar agreement). This event must be reported on a Form 8-K that is filed with the SEC within four business days of execution of the transaction agreement, but the target will also typically issue a press release announcing the transaction on the same day that the transaction agreement is executed (or early the next morning before trading of its equity securities commences). Companies are generally not required to disclose the existence of negotiations or entry into confidentiality agreements, non-binding letters of intent or other preliminary transaction agreements.

While not common, a company may be required to disclose a potential transaction prior to entering into a definitive transaction agreement for the purpose of correcting potentially false or misleading statements previously made by the company or to address market rumours that are significantly affecting trading in the company’s equity securities.

Market practice regarding disclosure is generally consistent with the requirements described above, although a company may decide (subject to any applicable confidentiality obligations) to disclose a possible transaction or related events, even if not legally required to do so, to address leaks or for other strategic reasons.

The scope of each due diligence review will vary based upon the nature of the target company’s business and whether the target company is privately owned or publicly traded, the structure of the proposed transaction and the level of co-operation provided by the target company. Generally, due diligence in the USA includes a comprehensive review of the target company’s operations and financial/accounting, legal and tax matters.

The focus of due diligence is usually on issues that could affect assumptions underlying the buyer’s rationale for the transaction (eg, potential synergies and/or anticipated growth of the target company’s business) or valuation of the target company (eg, contingent liabilities), as well as issues that could arise as a result of the transaction itself (such as change of control provisions in the target company’s material contracts).

Ultimately, the results of the due diligence review are meant to provide the buyer with an informed basis upon which to decide whether it should proceed with the proposed transaction and, if so, whether the transaction terms need to take account of any issues identified in due diligence. It is not common, in the USA, for the target company to provide potential buyers with vendor sell-side due diligence reports.

In transactions where target shareholders will receive buyer stock, the due diligence review will typically be mutual, with the target also conducting a review of the buyer.

If the target company is publicly traded, it is common for it to request that a potential buyer enter into a standstill agreement. Although practices vary, standstill provisions (ie, restricting the potential buyer from acquiring the target company’s securities or otherwise seeking to control the target company outside of a negotiated transaction) are usually in the confidentiality agreement executed by the potential buyer and the target company prior to the potential buyer being provided with non-public due diligence information.

Potential buyers often request that the target company enter into an agreement providing for a period of exclusive negotiations, although whether the target company agrees to this request will depend on the transaction and negotiation dynamics. In a situation where there is more than one potential buyer a target company may be reluctant to grant exclusivity to one potential buyer, since this would effectively end any competitive tension that had existed and increase the negotiating leverage of the potential buyer that is granted exclusivity.

However, in a situation where there is only one buyer or where the target company wishes to conclude negotiations quickly, granting exclusivity can be an effective way to incentivise a potential buyer to devote the time and resources required to reach a definitive transaction agreement.

It is permissible for a buyer and target company to agree to structure a transaction as a tender offer (followed by a second-step merger to acquire any remaining shares held by shareholders that did not participate in the tender offer) and to document this in the definitive transaction agreement.

The use of this structure can have timing advantages (compared to a long-form merger) in situations where antitrust review/approval and/or financing issues will not cause delays, and its use has increased in recent years following amendments to the “all holders/best price” tender offer rule that clarified certain uncertainties that had arisen in the application of that rule and state law rules that made it easier to “squeeze out” minority shareholders.

The length of a process for buying or selling a business can vary depending on a number of factors, including the type of asset being bought or sold, the competitive dynamic (ie, whether an auction process is being run), the amount of diligence required, the length of time needed to obtain required regulatory approvals and whether any litigation challenging the transaction is commenced. In general, parties can expect the process to take a minimum of three to four months from the beginning of discussions to the closing of the transaction.

Auctions

In sales of both privately owned and publicly traded companies, sellers often use auction processes to attempt to maximise the price of the business being sold. In an auction process, the potential buyers will usually submit an initial indication of interest, which could take three to four weeks to generate following receipt of a confidential offering memorandum from the seller. Typically, potential buyers that have submitted competitive bids will then be given access to detailed diligence materials and provided with an auction draft of a transaction agreement to comment upon and submit with their final bid. This submission generally occurs anywhere from four to eight weeks after the submission of initial indications of interest. After final bids are received, the parties will likely attempt to move quickly towards signing a transaction agreement.

Antitrust Waiting Period

In general, there is a 30-day waiting period under the HSR Act following the signing of definitive transaction agreements (assuming that the US antitrust authorities do not issue a second request) in addition to any other US or non-US regulatory approvals that may be applicable.

Changes due to COVID-19

During the COVID-19 pandemic, the staffs of the various US regulatory agencies, including the DOJ, FTC and SEC, as well as state agencies overseeing corporations and other business entities, continued to work from home to review M&A transactions and related filings, generally with no formal changes to review time periods. However, some practitioners reported a slower pace of reviews and an increased use of delay tactics by regulators, such as issuing second requests, where their agencies appeared unable to meet formal review timelines. In addition, the FTC and DOJ announced a suspension of grants of early termination of the HSR waiting period as of 4 February 2021 and, at the time of writing (April 2022), had not resumed or announced a timeline for resuming early termination grants.

Long-Form Mergers

If the target company is publicly traded and the acquisition is effected through a long-form merger, the transaction will take at least two to four months to close after the signing of a merger agreement. This is due to the time it will take to finalise with the SEC the proxy statement that describes the transaction and is mailed to target shareholders, and to schedule a shareholders’ meeting for the purpose of approving the merger agreement.

Two-Step Mergers

If the acquisition is effected through a two-step merger (see 2.1 Acquiring a Company), the entire process from launch of the tender offer to closing of the merger can last as few as five to six weeks. However, any number of factors, including the time required to obtain regulatory clearances, litigation, unsolicited alternative proposals from third parties and credit market conditions, can stretch these time periods significantly.

Tender offers in the USA are generally subject to regulation by federal securities laws, which do not impose a requirement for a shareholder or group that acquires a given threshold of securities of a company to make a tender offer for the remaining shares of the company. In addition, Delaware law does not impose any such requirement. However, a small number of US states do have “control share cash-out” statutes that require a shareholder that gains voting power of a given percentage of a company to purchase the shares of the other shareholders at a fair price upon demand.

In acquisitions of publicly traded US companies, the consideration payable to target shareholders consists solely of cash in more than half of these transactions (particularly where the buyer is not another publicly traded US company). In all other cases, consideration consists of either all stock or a mix of cash and stock. In acquisitions of public companies by private companies, the consideration payable to target shareholders is predominantly cash-only.

Where parties disagree on the value of the target business, or in industries or economic conditions with high valuation uncertainty, in a private transaction, parties may employ an earn-out structure to pay the target shareholders a lower price at closing and additional consideration later if specified business results or milestones are achieved. Alternatively, in either public or private transactions, buyer stock may be used as a portion of the consideration, so that the target shareholders may indirectly benefit from the performance of the acquired business.

A tender offer will generally be subject to a number of conditions, including:

• the tender of a minimum number of shares;
• the receipt or expiration of applicable regulatory approvals or waiting periods;
• there being no law or government order prohibiting the consummation of the offer; and
• the target not having suffered a material adverse effect.

An unsolicited or “hostile” offer will often include the following additional conditions:

• the target’s removal of any structural defences (eg, a shareholder rights plan or poison pill);
• the receipt of sufficient financing; and
• the absence of a competing takeover offer.

While a bidder generally has significant flexibility in defining the conditions to its offer, regulators require that conditions must be based on objective criteria and not be within the bidder’s sole control. They also require that conditions must be applicable to the entire offer (as opposed to establishing different conditions for different shareholders).

The minimum acceptance condition to a tender offer usually corresponds to the number of shares required to effectively control the target and to approve a subsequent second-step merger to acquire any remaining shares held by shareholders that did not participate in the offer (usually one share more than 50%). A company’s organisational documents or the corporate law of the company’s state of incorporation may provide a higher threshold requirement.

If at least 90% of outstanding shares are tendered into a tender offer, the bidder has the ability under the laws of many states, including Delaware, to effect a “short-form” merger that does not require a shareholders’ meeting and vote to occur.

In addition, amendments to Delaware’s corporate law in 2013 and 2014 eliminated the need to hold a shareholders’ meeting and vote to approve the second-step merger in situations where the bidder has acquired enough shares in the tender offer to approve the merger, but not the 90% required to enable the use of the short-form merger statute.

A business combination in the USA may be conditional on the bidder obtaining financing; while this would typically be the case in large hostile cash bids, most negotiated transactions do not include this condition.

As financing conditions are rare, the focus in transactions that include significant third-party financing tends to be on the level of effort that the bidder must expend in order to obtain and consummate the financing. In the USA, it is common for a bidder to have financial “commitments” from lenders at the time of signing transaction documents.

It is not uncommon for the bidder to be obligated to seek to enforce (via litigation, if necessary) the obligations of its third-party debt financing sources to provide the bidder with the agreed amount of debt financing at the closing of the transaction, and to seek to obtain alternative financing on similar terms if the original financing is unavailable.

In addition, bidders are often required to pay a “reverse termination fee” to the target company or the seller in the event that the transaction does not close due to the unavailability of debt financing to the bidder.

In the acquisition of a publicly traded company, a bidder can seek a number of deal protections, including:

• “non-solicitation” provisions that prohibit the target board from soliciting alternative transaction proposals but allow the target board to pursue unsolicited proposals that may result in an alternative transaction that is superior to the pending transaction;
• “matching” or “topping” rights that allow the bidder the opportunity to improve the terms of the current transaction if the target receives a superior transaction proposal from a third party;
• break-up fees payable to the bidder in the event that the transaction agreement is terminated in favour of an alternative transaction proposal (these fees, based on guidance from the Delaware courts, tend to be in the range of 2-4% of the transaction value); and
• “force the vote” provisions that require the target board to submit the transaction to its shareholders for approval even where the board is no longer recommending the transaction (eg, where it receives a superior alternative proposal).

Private transactions usually involve agreements with significant shareholders of the target company to vote to approve the transaction, thereby creating more closing certainty and eliminating the need for the deal protection measures set forth above.

In virtually all transactions involving a period between signing and closing, the parties will negotiate covenants requiring the target company to continue to generally operate in the ordinary course of business, consistent with past practice, during the interim period to preserve the value of the business for the buyer. Due to COVID-19, many target companies have insisted on specific exceptions to these covenants to permit target management flexibility to react to the changing conditions caused by the pandemic and prevent the buyer from terminating the transaction due to those developments.

Typically, a large shareholder would seek protections with respect to governance rights, information rights and transferability of its shares.

Governance rights can include the right to designate members of the company’s board of directors and, in a private company context, approval or consultation with respect to budget and business plans and the hiring, promotion and/or termination of senior executives. Investments in private companies can also include veto rights over certain other matters (including amendments to organisational documents, business combination transactions and issuances of additional equity securities).

Information rights can include the right to receive periodic financial information and operating reports, as well as a general right to make reasonable requests for additional information.

Transferability provisions can include those that facilitate a sale or exit by the bidder. These provisions may include a right to cause the company to register the shares held by the bidder under applicable securities laws so that they can be re-sold in public markets. Transferability provisions may also include the right to compel or “drag” other shareholders to participate in a sale transaction.

Shareholders can, and shareholders of public corporations typically do, vote by proxy in the USA.

As a general matter, the nature and scope of shareholder voting rights are defined by state law and a company’s organisational documents. The provisions of state law that will usually apply to a proxy solicitation include notice, record date, quorum and voting approval requirements.

Federal regulations promulgated under the Securities Exchange Act of 1934 (as amended) are also applicable to proxy solicitations of shareholders of companies listed on a national securities exchange. These regulations set forth additional procedural requirements for such proxy solicitations and the minimum information that must be included in a proxy statement sent to shareholders to solicit their vote.

Finally, the US stock exchanges on which a public company’s shares are traded enforce additional regulations affecting proxy solicitations, including with respect to disclosure requirements, timing and the ability of brokers or other nominees to vote on behalf of the beneficial holders (ie, retail investors) for whom they hold shares. The New York Stock Exchange and the Nasdaq Stock Market each prohibit brokers from voting on behalf of beneficial holders on non-routine matters such as M&A transactions without specific instructions on the matters from the beneficial holders.

Shareholders that remain following a successful tender offer are generally squeezed out by effecting a second-step merger. This will be a short-form merger (if available), or a long-form merger where the required shareholder approval is assured because of the number of shares held by the buyer following the tender offer; see 6.5 Minimum Acceptance Conditions.

Whether a buyer seeks to obtain an irrevocable commitment from the principal shareholders of a target company to tender or vote in favour of a transaction and not tender or vote in favour of an alternative transaction (often called a “lock-up”) is highly fact and transaction-specific. It will depend on, among other factors, the identity of the principal shareholders and the size of their holdings. Confidentiality considerations and the target company’s willingness to involve the principal shareholders in transaction discussions prior to a public announcement may also be relevant factors.

While Delaware law generally permits the use of lock-ups, current case law in Delaware generally prohibits a buyer from obtaining lock-ups of a number of shares that would make shareholder approval of a transaction a mathematical certainty. Additionally, as lock-ups are considered a deal protection device, they will be reviewed together with any other deal protections employed in the transaction for reasonableness by a Delaware court.

In the context of a negotiated transaction, a bid would not generally be made public until a definitive agreement has been reached between the bidder and the target. At that time, the transaction would be jointly announced by the parties. In a hostile bid, the bidder usually issues a press release announcing an intention or proposal to bid for the target.

In both negotiated and hostile transactions, bidders or targets may sometimes disclose that negotiations are ongoing or that offer letters have been sent or received, but this is less common. In addition, it is possible for news of a potential transaction to “leak” into the public domain through the media prior to a formal public announcement of a transaction.

If the target company is publicly traded, the material terms of the transaction, including price, conditions to closing and any special terms or break-up fees, must be disclosed on a Form 8-K filed by the target company (and generally the buyer, if it is also a public company) with the SEC within four business days following execution of the transaction agreement.

Depending on the structure of the transaction, shareholders would then receive either a proxy statement from the target or a tender offer document from the bidder and a recommendation regarding the transaction from the board of the target, all of which would be filed with the SEC. The substantive disclosure required for business combinations is broadly similar, regardless of structure, and would include previous dealings between the target and the bidder, a summary of the material terms of the transaction and certain financial information. Detailed disclosure regarding any fairness opinion rendered by the target’s financial adviser to the target board must also be included.

Issuance by the bidder of shares as consideration in a proposed transaction requires the bidder to register the share offering under federal securities laws, unless an exemption is available, such as private placements to only “accredited investors” satisfying requirements regarding their income, net worth, asset size, governance status, or professional experience. If required to register, the bidder must prepare a registration statement containing a prospectus with additional disclosure relating to the bidder and its shares, including the bidder’s financial statements. When a registration statement is required, it is generally combined with the proxy statement or tender offer document into a single document.

Requirements in respect of bidder financial statements are complex and a case-by-case analysis of the financial information requirements of each transaction should be undertaken by bidders for US public companies. Unless the bidder’s financial condition is not material to the target’s shareholders (eg, in an all-cash offer for all outstanding shares that is not subject to a financing condition), the bidder’s audited financial statements are generally required for the last two fiscal years (for an all-cash transaction) or three fiscal years (where bidder shares are offered as consideration), and unaudited but reviewed financial statements are required for the most recent interim period. Pro forma financial information may also be required for the most recent interim period and fiscal year.

The bidder’s financial statements must be presented in accordance with US Generally Accepted Accounting Principles (GAAP) or International Financial Reporting Standards (IFRS), or reconciled to one of these standards.

A US public target company is generally required to file with the SEC a copy of any material definitive transaction agreement reached with a buyer within four business days of its execution on a Form 8-K or with the target’s next quarterly report on a Form 10-Q (or, if earlier, its next annual report on a Form 10-K). These documents become publicly available immediately upon filing.

In addition to the definitive transaction agreement, any other agreements that are material to the transaction, which could include voting agreements or agreements relating to the financing of the transaction, must be described in detail in the relevant disclosure document provided to shareholders and filed with the SEC (and a copy of the agreement may also be required to be filed as an exhibit to the disclosure document).

Although the SEC can grant confidential treatment for portions of transaction documents that are required to be publicly filed, this is not common. Nevertheless, parties are permitted to, and typically do, omit from their public filings any schedules and similar attachments to transaction agreements if the contents of those schedules or other attachments do not contain material terms of the transaction or other information material to the shareholders’ investment decision; however, parties may still be required to provide such materials confidentially to the SEC upon request.

Directors of Delaware companies owe two principal fiduciary duties to the company and its shareholders: a duty of care and a duty of loyalty. These fiduciary duties are generally not owed to any other constituencies, except in unusual circumstances, such as a company insolvency, where duties may be owed to company creditors. Certain other states have “other constituency” statutes, which permit directors to consider the impact of a potential business combination on constituencies (such as employees) other than the company and its shareholders.

The duty of care requires directors to exercise reasonable care in making decisions for the company. This duty requires directors to inform themselves of all available material facts and circumstances, devote sufficient time and deliberation to the matters under consideration, participate in board discussions, and ask relevant questions before making a decision or taking a particular action related to a potential business combination.

The duty of loyalty requires directors to be loyal to the company and its shareholders, to act in good faith and to not act out of self-interest or engage in fraud, which includes a prohibition on self-dealing and the usurpation of corporate opportunities.

It is not uncommon for boards to establish special or ad hoc committees to negotiate and evaluate potential business combinations. A committee of independent directors is often formed in situations where the potential transaction involves a controlling shareholder or management participation, or where a majority of directors are conflicted. In these situations, the forming, empowering and effective functioning of a special committee of disinterested and independent directors can be an effective part of demonstrating that the directors have discharged their fiduciary duties in evaluating and approving the transaction.

Under Delaware law, decisions made by a company’s board (including in the context of evaluating takeover proposals) will generally be protected by the business judgement rule, which is an evidentiary presumption (rebuttable by a shareholder plaintiff) that in making a business decision directors acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company and its shareholders. In the absence of a breach of fiduciary duties, directors will not be held liable for board decisions, even where those decisions result in unfavourable outcomes.

However, there are three types of situations in which Delaware courts will not defer to board decisions under the business judgement rule and instead will usually employ an enhanced scrutiny standard of review.

Defensive Measures

Where directors employ defensive measures (such as adopting, or refusing to redeem, a shareholder rights plan, or poison pill) to resist a takeover proposal, Delaware law requires directors to show that they had reasonable grounds for believing that the takeover proposal constituted a threat (eg, because it undervalues the company) and that their response was reasonable in relation to that threat.

Sale or Break-Up of Company

If a company initiates an active bidding process seeking to sell itself or to effect a business reorganisation involving a clear break-up of the company or, in response to a takeover proposal, a company abandons its long-term strategy and seeks an alternative transaction involving a break-up or sale of the company, directors have a duty to obtain the best value reasonably available for shareholders under the circumstances.

Conflicts of Interest

If a transaction involves a conflict of interest (eg, those involving a controlling shareholder or in which directors or management “stand on both sides” of the transaction), Delaware courts may apply the “entire fairness” standard of review. In this situation, the proponents of the transaction must demonstrate both fair price (meaning the financial terms of the proposed transaction are fair to the company and the unaffiliated shareholders) and fair dealing (meaning the sales process was fair to the company and the unaffiliated shareholders). In this context, the negotiation of the terms of the transaction on behalf of the target company by a special committee of the target’s board composed of disinterested directors and advised by independent legal and financial advisers is an important factor in demonstrating the fairness of the transaction.

Recent Case Law

Relatively recent Delaware case law suggests that target companies can seek to reduce the level of scrutiny applied by Delaware courts to board decisions, irrespective of the use of defensive measures, a clear break-up or abrupt sale of the company or a conflict of interest, by obtaining shareholder approval by means of a fully-informed, disinterested and uncoerced shareholder vote.

A board considering a possible business combination transaction will generally engage outside legal and financial advisers and may also seek the advice of outside accountants and consultants.

Directors are permitted to rely upon the advice of outside professionals (as well as internal management and other employees within the scope of their expertise), and the receipt of robust advice from outside advisers is an important aspect of the discharge of a director’s fiduciary duties.

Boards of publicly traded target companies will almost always request that their financial adviser deliver a “fairness opinion” to the board, which will opine that the consideration to be received by the target company’s shareholders is fair from a financial point of view.

Conflicts of interest of principals and advisers of target companies have been the subject of judicial scrutiny by Delaware courts. For example, in each of the 2011 In re Del Monte Foods Co Stockholder Litigation and 2014 In re Rural Metro Corp Stockholders Litigation cases, the Delaware Chancery Court focused on conflicts of interest that can be created when a target’s financial adviser also seeks to provide acquisition financing to the buyer, or otherwise has incentives to favour one potential buyer over others.

In each case, the court stressed the need of the target’s board of directors to actively and vigilantly educate themselves with respect to conflicts (or perceived conflicts) and to supervise its outside advisers. In addition, the 2015 In re Dole Food Co Stockholder Litigation demonstrates that Delaware courts will apply the highest level of scrutiny to instances in which interested principals in a take private transaction are found to have taken steps to undermine the quantity and quality of information available to unaffiliated minority stockholders and board committees entrusted to negotiate on those stockholders’ behalf.

Hostile tender offers are permitted in the USA. However, they remain far less common than negotiated transactions. One reason for this is that hostile bids are less likely to be completed than negotiated transactions (due to the ability of the target to employ defensive measures against the bid) and, even if completed, usually take much longer than negotiated transactions.

In addition, the lack of access to non-public due diligence materials is often a deterrent to making a hostile offer because it increases the transaction risk for a bidder. A hostile offer often turns into a negotiated transaction before it is completed and can also result in the target being sold in an alternate transaction to a buyer that did not make the hostile bid.

The use of defensive measures by US companies to defend themselves from hostile bids is generally permitted, subject to limitations imposed by directors’ fiduciary duties; see 8.1 Principal Directors’ Duties and 8.3 Business Judgement Rule. The applicable fiduciary duty standard of review will be governed by the law of the target’s state of incorporation.

Companies use a variety of tactics to defend themselves from hostile bids. Among the most common are shareholder rights plans, or poison pills, which effectively cap the amount of the company’s equity securities that can be acquired by a shareholder (or group of shareholders acting in concert) by imposing severe dilution on any shareholder making an acquisition above a specified threshold (typically between 10% and 20% of the company’s outstanding shares).

COVID-19

In the early days of the COVID-19 pandemic, the significant drop of stock prices in March 2020 led to a significant uptick in adoption of poison pills, many to deter opportunistic stock sweeps and others to preserve valuable tax assets. Although institutional shareholders and proxy advisory firms acquiesced in many instances to companies putting this temporary protection for a short period of time, poison pills viewed as too aggressive were challenged, including in court; eg, in its 26 February 2021 decision, the Delaware Chancery Court invalidated a poison pill adopted by the Williams Companies with a 5% threshold (and certain other features that the court deemed aggressive) and found that the board of Williams breached its fiduciary duties in adopting it.

Provisions against Bidder Control

Companies may also include provisions in their organisational documents that make it more difficult for a bidder to obtain control, such as those:

• imposing restrictions on shareholders’ ability to remove directors or take action outside of the annual shareholders’ meeting;
• providing for staggered terms for directors;
• requiring supermajority shareholder approvals for merger or sale transactions;
• permitting the board to issue preferred stock with terms determined by the board; and
• requiring significant advance notice by shareholders of any proposal that they intend to put before a meeting of the shareholders.

A company may also seek to involve third parties in ways that could render the hostile transaction less palatable for the bidder, such as:

• increasing the antitrust or regulatory risk for the bidder by lobbying regulators;
• changing its capital structure through stock repurchases, issuing preferred stock or taking on debt; or
• soliciting an alternative bidder or investor.

As a delaying tactic, a company may also initiate litigation against a bidder while other defensive measures are explored.

See 8.3 Business Judgement Rule.

In practice, directors may be able to “just say no” to prevent a business combination. Decisions of directors under Delaware law are generally protected by the business judgement rule, although the conduct of directors will be subject to heightened scrutiny where directors have employed defensive measures to resist a hostile bid.

Under Delaware law, directors have significant latitude to refuse to engage with a bidder submitting an acquisition proposal if they believe that the proposal does not reflect the target company’s long-term value.

Shareholder litigation is very common in connection with the acquisition of US public companies, but the overall levels of such litigation have fluctuated in recent years. The fluctuation is tied to at least two developments in the laws concerning merging litigation:

• firstly, decisions by state (principally Delaware) and federal courts have attempted to curtail the use of “disclosure only” settlements used by shareholder plaintiffs to extract additional information and legal fees from target companies in M&A transactions; and
• secondly, Delaware courts continue to extend the application of the business judgement rule (ie, the most lenient standard of judicial review) to decisions by boards of directors of target companies in certain merger transactions approved by a fully informed, uncoerced shareholder vote, making it more difficult for shareholders to challenge such transactions and easier to obtain dismissal of such challenges early in the proceedings before shareholder plaintiffs can seek discovery.

However, the measures taken by states such as Delaware to reduce shareholder litigation have resulted in plaintiffs seeking alternative means and jurisdictions to resolve merger-related disputes and seek money damages.

In addition, appraisal actions have been prevalent in M&A related litigation, particularly in Delaware. However, recent decisions by the Delaware Supreme Court may reduce the frequency and outcomes of appraisal actions in that state. In those cases, the Delaware Supreme Court held that significant, if not dispositive, weight should be placed on market-based indicators of value, including the target’s stock price or the transaction price, where the shareholders seeking appraisal fail to demonstrate that the market for the target’s stock is inefficient and/or that the transaction price did not result from a robust sale process.

Although litigation challenging M&A transactions continues to occur routinely in the USA, it is relatively uncommon for it to result in a meaningful delay in the transaction or personal liability to the target company directors that approved it.

Litigation is usually brought shortly following the public announcement of the M&A transaction. The Plaintiffs’ Bar in the USA is very experienced and usually able to identify a shareholder plaintiff and file a complaint within days of learning of a new transaction. This timing is driven by at least three factors.

Firstly, plaintiffs’ lawyers are often only compensated if they are designated as “lead counsel” for the shareholders challenging the transaction. Being one of the first to file a lawsuit has traditionally increased the chances of being selected by the court to serve as lead counsel. There is a recent trend, however, of courts designating lead counsel based on which party is likely to be the best shareholder class representative.

Secondly, plaintiffs may have more bargaining power with target companies before the transaction has closed. It is therefore common for plaintiffs to ask the court to prohibit the transaction from closing while the litigation is pending.

Thirdly, plaintiffs are usually able to commence litigation by filing a complaint that is not very specific. Plaintiffs commonly amend their initial complaint to include more detailed claims and information once they have conducted a thorough review of publicly available information relating to the transaction (especially the disclosure document that is provided to shareholders) and discovery.

During the COVID-19 pandemic, target companies have generally sought to lessen the potential for transactions to be terminated by buyers for reasons relating to the pandemic, including by adding flexibility in the interim operating covenants (see 6.7 Types of Deal Security Measures) and explicit exclusions for the effects of the pandemic in the definition of “material adverse effect”.

Shareholder activism in the USA, both in relation to M&A activity as well as other matters such as target asset allocation, corporate governance practices, executive compensation and operational matters, has over the last several years become an increasingly relevant consideration for corporate boards.

On the M&A front, shareholder activists sometimes seek to cause public companies to either put themselves up for sale or sell or spin-off one or more of their businesses. Market volatility in the early days of the COVID-19 pandemic forced activists to review their strategies, with some activist funds pausing their campaigns and others trying to take advantage of the significant drop of stock prices in March 2020.

There have been a number of high-profile situations where a shareholder activist has targeted an announced, but not yet completed, transaction. In these situations, the activist has sought an increase in the purchase price payable to the target company’s shareholders (or other modifications to the agreed transaction terms) or to cause the transaction to terminate with a view to the target company pursuing an alternative transaction or strategy.