Methods for pursuing digital acquisitions | M&A Conference at Wharton San Francisco

By Mr. Tom Herd & Mr. Oliver Vivell & Mr. Duane Nelles & Mr. Kevin Hutchins

This discussion looked at acquisitions and corporate venture investments in innovative companies when the objective is primarily to access enabling capabilities or disruptive business models powered by technology and analytics.

The participants focused on transactions where much of the value is embedded in future growth, algorithms, intellectual property including in-process R&D, intangible assets, and human capital including founders and management teams.

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Improving board involvement in M&A at each phase of the deal process | M&A Conference at Wharton San Francisco

By Brian T. Mangino, Esq. & Mr. Steve Rust & Alan Konevsky, Esq. & Ray Veldman, Esq.

M&A deals necessitate the involvement of both sides’ board of directors. However, effectively engaging and communicating with each board can be a difficult task to navigate.

Faculty member Brian Mangino, Esq., Partner at Fried Frank distilled board engagement into four major phases and then guided the discussion through each phase...

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Steps to minimize risk of a fiduciary duty breach by the target’s board

Steps to minimize risk from a fiduciary duty breach by the target’s board
By Kimberly R. Spoerri, Esq. & Keenan S. Weatherford, Esq.

A buyer’s failure to account for breaches of fiduciary duties by the target’s board can lead to deal execution risk and/or post-closing liability for the buyer once it has acquired the target (together with its attendant liabilities). 

The authors of this paper discuss steps that may be taken to minimize the risks associated with such breaches, with respect to conduct by the target’s directors and management including...

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Earnouts bridge valuation differences, but frequently lead to post-closing disputes

Earnout bridge valuation differences, but frequently lead to post-closing disputes
By Gail Weinstein, Esq. & Brian T. Mangino, Esq. & David L. Shaw, Esq. & Robert C. Schwenkel, Esq. & Steven Epstein, Esq. & Maxwell Yim, Esq.

While often used to bridge valuation differences during the negotiation of an agreement to sell a company, earnouts frequently lead to post-closing disputes. This detailed paper looks at two recent Court of Chancery decisions which highlight pitfalls associated with the period during which earnouts are measured. In Edinburgh Holdings, Inc. v. Education Affiliates, Inc., the court held that the covenant to operate the acquired business “consistent with past practices” during the Earnout Period precluded disposition of the earnout-related dispute at the early pleading stage of litigation.

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Abandoned acquisitions: Why some deals fail to complete?

Abandoned acquisitions: Why do some deals fail to complete?

This paper discusses the findings of an extensive, long-term research study into abandoned acquisitions—defined as announced merger and acquisition that subsequently fail to complete.  Nearly 80,000 announced transactions during the period 1992-2016 were analyzed for the study.

The research on deal failure rates by acquirer-target region pairs, and emphasizes the significant difference in failure rates between public and private announced deals, which is attributed to...

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