Takeover Defense, Mergers and Acquisitions, 9th Edition (1-year Online Subscription)

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