CHAPTER 1: INTRODUCTION AND REGULATORY FRAMEWORK
- Overview
- The Need for Preparedness
- Regulatory Framework
- Tender and Exchange Offer Regulations
CHAPTER 2: ADVANCE PLANNING AND TARGET DISCLOSURE
- First Steps
- Defensive Review
- The Target’s Disclosure Obligations
CHAPTER 3: DIRECTORS’ FIDUCIARY DUTIES
- Directors’ Fiduciary Duties in Takeovers and Mergers
- Evolution of Unocal Principles for Takeover Defense
- Standards and Procedures for Board Approval of Defensive Actions
- Unocal Applied in Recapitalization and “Independence” Cases
- Director Liability and Indemnification
CHAPTER 4: STATE TAKEOVER STATUTES AND OTHER REGULATION
- Introduction
- History
- Strategic Considerations
- Constitutional Issues
- Business Combination Statutes
- Other State Takeover Statutes
- Defensive Internal Affairs Regulation
- Federal and State Change-of-Control Laws in Regulated Industries
- Reincorporation
CHAPTER 5: THE POISON PILL DEFENSE
- Overview of the Poison Pill
- The Pill’s Effectiveness and Limitations
- Relationship to Other Takeover Defenses
- Evolution of the Poison Pill
- The Standard Flip-In Pill
- The Legality of the Poison Pill
- Procedures for Implementing a Poison Pill
- The Pill Redemption Cases
- Securities Law Issues
- Quasi-Pills
- The Future of the Pill
CHAPTER 6: CHARTER AND BYLAW PROVISIONS
- Types of Provisions: Their Use and Importance
- Legal Requirements
- The Practicalities of Adoption and Approval
- SRO One Share/One Vote Policy
- Controlling Changes in the Board of Directors
- Shareholder Action Provisions
- Requirement of a Supermajority Shareholder Vote for Certain Transactions
- Fair Price Provisions
- Anti-Greenmail Provision
- Consideration of Social, Economic, and Other Factors in Evaluating a Bid
- “Shark Repellents” in Debt Instruments
CHAPTER 7: EMPLOYEE BENEFIT PLANS AND EXECUTIVE COMPENSATION ARRANGEMENTS
- Introduction
- Process for Reviewing and Designing Benefit Protections
- General Considerations
- Specific Protections Afforded to Employees
- Protective Trusts
- Code Section 162(m)
- Code Section 280G
- Code Section 409A
- Employee Stock Ownership Plans (“ESOPs”)
- Disclosure Requirements
- Severance Agreements Under ERISA
- Legal Standards Applicable to the Adoption of Benefit Protection Arrangements
- The Role of Organized Labor in Corporate Takeovers
- Developments Under the Emergency Economic Stabilization Act of 2008
CHAPTER 8: RESPONDING TO A PROSPECTIVE HOSTILE BIDDER OR A RAIDER
- Responding to a Share Accumulation
- Responding to Proposals
- Stockholder List and Books and Records Requests
- Dispute Settlement: Buyback or Standstill Agreements
CHAPTER 9: RESPONDING TO A TENDER OFFER
- Board Evaluation of an Unsolicited Tender Offer
- Schedule 14D-9
- Rule 14d-5 Bidder Mailing Rights
- Target Stockholder Agreements
- Counter Tender Offer
- Tax Treatment of TakeoverDefense Costs
CHAPTER 10: PROXY CONTESTS
- Introduction
- Takeover Defense Issues Under the SEC Proxy Rules
- State Law Considerations
- Consent Solicitations
- Defending Against Proxy Fights by a Bidder
- Proxy Fights Designed to Force Economic Action by the Target
- Proxy Fights for Board Representation or Control
- Stockholder Proposals
- Proxy Voting and Counting
- Proxy Litigation
CHAPTER 11: LITIGATION AGAINST RAIDERS AND ACTIVIST INVESTORS
- Strategic Considerations
- Suing an Accumulator
- Challenging a Tender Offer
- Special Defenses Against Foreign Raiders
CHAPTER 12: ANTITRUST CONSIDERATIONS
- Introduction: Antitrust Issues and Target Strategy
- Federal Enforcement
- DOJ and FTC Merger Guidelines
- The Hart-Scott-Rodino Act
- State Enforcement
- International Enforcement
- Antitrust Litigation Against Raiders
CHAPTER 13: RECAPITALIZATIONS AND RESTRUCTURINGS
- Introduction
- Changing the Capital Structure
- Sales of Divisions, Liquidations, and Spin-Offs
- White Squires
- Stock Purchase Plans and Self-Tenders
- Controlled Combination Transactions
CHAPTER 14: SELLING OR MERGING THE COMPANY
- Introduction
- Board Fiduciary Duties in Sales and Mergers
- When Does “Revlon Mode” Generally Occur?
- Consequences of the “Revlon Mode”
- Deal Protection
- Leveraged Buyouts (LBOs), Management Buyouts (MBOs) and Private Equity
- Certain Merger Agreement Issues
- Sales of Majority Controlled Companies
- Issues for Investment Bankers
- Appraisal and Quasi-Appraisal Rights and Remedies
