Will A Bump-Up Exclusion Bar Coverage of an M&A Settlement? It Depends.
Public company insurance policyholders beware: In recent years, insurance carriers have increasingly invoked the “bump-up” exclusion, which is a carve out provision typically found in directors and officers (D&O) insurance policies. In many public company M&A deals, the shareholders of the target or acquired company will file a lawsuit challenging […]
4 Tips for Drafting Earnouts To Avoid Disputes
Amid a somewhat sluggish mergers and acquisitions market, and as buyers seek to scoop up companies at a discount while sellers long for the sky-high valuations of 2020 and 2021, the earnout is having a moment. To learn more about tips on drafting earnouts to avoid disputes please see the […]
Recent Release of Updated Procedures for Section 355 Private Letter Rulings
The US Department of the Treasury (Treasury Department) and the IRS recently released Revenue Procedure 2024-24 (Revenue Procedure) and Notice 2024-38 (Notice) establishing revised standards and procedures for taxpayers seeking private letter rulings for spin-offs intended to qualify for tax-free treatment under Section 355 of the Internal Revenue Code (Code). Much of the Revenue […]
Beyond Borders: A Guide for Navigating the European Regulatory Landscape
The heightened scrutiny M&A deals are encountering from various regulatory agencies in the US represents only part of the global regulatory regimes that cross-border dealmakers must navigate. European regulators have enacted – and aggressively pursued – a web of regulatory review tools, including merger control, foreign direct investment (FDI) and […]
Representation and Warranty Insurance for M&A Deals: Cooling Market and Emerging Trends
While representation and warranty (R&W) insurance continues to be used across a broad range of M&A transactions, its use has cooled as dealmakers navigate challenging market conditions. Even for deals that are getting done, a smaller percentage of private deals have included R&W insurance than in recent, more robust M&A […]
IRS Publishes Proposed Regulations on Stock Buyback Excise Tax
On April 12, 2024, the US Department of the Treasury and the IRS published proposed regulations (89 FR 25980 and 89 FR 25829, the “Proposed Regulations”) on the application of Section 4501,1 which imposes a 1% excise tax2 on certain repurchases of stock of publicly traded US corporations (the “Excise Tax”). The Proposed Regulations […]
Delaware Supreme Court applies MFW framework to other conflicted transactions
In In re Match Group, Inc. Derivative Litigation, the Delaware Supreme Court answered some important questions about the standard of review applicable to conflicted transactions under Delaware law. The first question relates to the application of the model used in Kahn v. M & F Worldwide Corp., commonly referred to as the “MFW framework.” In that […]
Delaware Double Whammy Casts Doubt on M&A Practices
Delaware courts recently issued important decisions that impact M&A dealmakers and lawyers. In this post, we dive into two cases that serve as a reminder that Delaware grounds review of corporate actions in statutory requirements and not market practice, no matter how prevalent. In response, legislation to resolve the ambiguity […]
New Hart-Scott-Rodino Act Filing Thresholds, Filing Fees and Interlocking Directorate Thresholds Announced
The Hart-Scott-Rodino (HSR) Act thresholds that govern which mergers & acquisitions must be reported to the US Department of Justice (DOJ) and Federal Trade Commission (FTC) will increase slightly more than 7% in March 2024. To learn more about the changes to the Hart-Scott-Rodino (HSR) Act please see the recent […]
Cooley’s 2023 Tech M&A Year in Review: An AI-Generated Glass Half Full
2023’s much-discussed downturn in mergers & acquisitions – with global M&A volume and value down 6% and 17%, respectively, from 2022 – was largely driven by the slowdown in the tech sector, with global tech M&A volumes down 51% year over year, while other sectors saw marked increases.[1] The headwinds […]