Cleary M&A and Corporate Governance Watch

Mergers and Acquisitions, Corporate Governance, Shareholder Activism

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This is the fourth in a series of posts discussing certain issues and lessons for practitioners arising out of the recently settled dispute between CBS and its controlling stockholder.[1]  Relevant background can be found here and additional posts in this series can be found here. In the first week of the CBS-NAI litigation, the Court of Chancery denied CBS’s request for a temporary restraining order (“TRO”), which would have prevented NAI from…
Until Vice Chancellor Laster’s decision last week in Akorn Inc. v. Fresenius KABI AG,[1] no Delaware court had released an acquiror from its obligation to close a transaction as a result of the occurrence of a “Material Adverse Effect.”[2]  The cases previously adjudicated in Delaware all had required the acquiror to close, often despite a significant diminishment in target value and, in some, the court criticized the acquiror for seeking to avoid…
This is the third in a series of posts discussing certain issues and lessons for practitioners arising out of the recently settled dispute between CBS and its controlling stockholder.[1]Relevant background can be found here and additional posts in this series can be found here. As described in a prior post, on May 17, 2018, the majority of the CBS board (other than the three directors with ties to NAI) considered and…
The Delaware Supreme Court has clarified that controlling stockholder take-private transactions will be reviewed under the business judgment rule, rather than the less deferential entire fairness standard, if the controlling stockholder self-disables by committing to special committee and majority-of-the-minority approval before “economic negotiations” take place, even if the controlling stockholder fails to do so in its initial written offer.  See Flood v. Synutra Int’l, Inc., No. 101, 2018 (Del. Oct. 9, 2018).[1] The Delaware…
This is the second in a series of posts discussing certain issues and lessons for practitioners arising out of the recently settled dispute between CBS and its controlling stockholder.[1] Relevant background can be found here and additional posts in this series can be found here. The vast majority of public company shares are owned in “street name” – e.g., through a broker.  When holding shares in “street name,” a stockholder’s brokerage account reflects…
This is the first in a series of posts discussing certain issues and lessons for practitioners arising out of the recently settled dispute between CBS and its controlling stockholder. Introduction National Amusements, Inc. (“NAI”) owns approximately 80% of the voting shares of CBS Corporation and Viacom Inc., and in early 2018, NAI proposed that CBS and Viacom consider a merger. Each of the boards of CBS and Viacom formed a special committee of independent directors…
The record breaking heat this past summer left M&A activities cold. Signa and Hudson’s Bay agree on a merger between Karstadt and Kaufhof. Signa takes over the lead role. In addition, Signa acquires significant real estate properties from Hudson’s Bay. Via Warwick, Morgan Stanley submits a takeover offer for all shares of the logistics company VTG. Haniel prepares its withdrawal from retailer group Metro with the disposal of a 7.3% share participation and the granting…
On September 18, 2018, The Conference Board and Cleary Gottlieb Steen & Hamilton LLP co-hosted a panel discussion on the key findings from the Conference Board’s Job of the Corporate Director Series. Participants in the panel discussion included Victor Lewkow and Jared Gerber, partners at Cleary Gottlieb, and John Wilcox, Chairman of Morrow Sodali. Moderator Doug Chia, executive director of The Conference Board, and the panelists discussed a number of topics related to the…
On August 21, 2018, the Internal Revenue Service (“IRS”) issued Notice 2018-68 (the “Notice”), which provides initial guidance on the application of Section 162(m) of the Internal Revenue Code, as amended by the 2017 Tax Cuts and Jobs Act (“TCJA”). The guidance is limited to the definition of the term “covered employees” and the application of the transition rule accompanying the TCJA amendments. Certain aspects of the Notice will be of practical significance for many…