January 9, 2008

ABA’s “2007 Strategic Buyer/Public Target Deal Points Study”

A few months ago, the Committee on Negotiated Acquisitions of the American Bar Association’s Section of Business Law released its “2007 Strategic Buyer/Public Target M&A Deal Points Study.” We have posted a copy of the study in our “Negotiation Tactics” Practice Area.

As Keith Flaum, Chair of the Committee’s M&A Market Trends Subcommittee, notes in this entry in Harvard Law School Corporate Governance Blog. Here is an excerpt from that blog:

“The Study examines key deal points in acquisitions of publicly traded companies by strategic buyers announced in 2005 and 2006. Among the many interesting findings of the Study is that almost 50% of the acquisition agreements in the sample contained provisions precluding the Board of Directors from changing its recommendation in favor of the acquisition absent a topping bid. (Those provisions are described on pages 47 and 48 of the Study.) This would seem to cut against the views of many practitioners (supported, to some extent, by language in Chancery’s 2005 decision in Frontier Oil v. Holly Corp., as well as comments made publicly in early 2006 by a leading Delaware jurist) that such a limitation could violate the fiduciary duties of the Board of Directors under Delaware law.”