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"Private M&A Wake-Up Calls: Conflicted Board Risks, Post-Closing Unenforceability & Shareholder Approval/Duty of Care Traps"

Thursday, February 26, 2015

2:00 - 2:45 pm, eastern [archive and transcript to follow]


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Private M&A has been rocked by recent caselaw out of Delaware, particularly in the review of sales of VC-funded start-ups. As the prices for these deals regularly enter the billions of dollars range (e.g., Waze, WhatsApp, Tumblr, Instagram, Beats), the scrutiny will continue and it's time practitioners got it right. The boards of these VC-funded targets are often fraught with conflicts and, especially in down-side exits, susceptible to challenge based on recent Delaware caselaw.

Meanwhile, the heavily negotiated indemnities, escrows, earn-outs and purchase price adjustments, which characterize these deals, may not even be enforceable due to the structures customarily used, according to a new decision out of Delaware. And the mechanics used to lock-in a quick shareholder approval and deal protection are worth revisiting in light of new amendments to Delaware law and fiduciary duty caselaw. The panel will feature lawyers who have been involved in the most high profile and high quantities of M&A deals of this type and in some of the key cases on these topics.

  • Ethan Klingsberg, Partner, Cleary Gottlieb Steen & Hamilton LLP
  • Marty Korman, Partner, Wilson Sonsini Goodrich & Rosati PC
  • Andrew Luh, Partner, Fenwick & West LLP
  • Jeff Wolters, Partner, Morris Nichols Arsht & Tunnell LLP

Among the topics of this program are:

- The lack of independence on boards of VC-funded targets - liability exposures, solutions, advice for acquirors and targets

- What does Cigna v. Audax (Nov. 26, 2014), taken together with other recent decisions, mean for the enforceability of post-closing indemnities, escrows, earn-outs and purchase price adjustments, and what creative solutions would address these risks?

-What is the optimal way to secure a quick stockholder approval and lock in deal certainty without running afoul of either the Delaware merger statute or Revlon duties of care, and how can new amendments to Delaware law and an understanding of caselaw facilitate these efforts?


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