ACQUIRING A US PUBLIC COMPANY:
AN OVERVIEW FOR THE NON-US ACQUIRER
TABLE OF CONTENTS
I. Introduction ........................................................................................1
II. The US M&A Market............................................................................1
III. Friendly or Hostile? Deciding on the Approach to a Target............2
IV. The Basics: Transaction Structures..................................................2
A. One-Step: Statutory Merger............................................................3
B. Two-Step: Tender Offer or Exchange Offer Followed by a
C. One-Step or Two-Step? Deciding Which Structure to Use............11
V. Regulatory Approvals and Other Considerations..........................13
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This guide summarizes certain important considerations for a non-US acquirer
seeking to acquire a publicly traded US-based target corporation through a
negotiated (i.e. “non-hostile”) tender offer, exchange offer or merger.
US public companies are subject to the laws of the US state in which they are
incorporated, as well as US federal securities, competition and other laws. Over
50 percent of public companies and almost two-thirds of the US Fortune 500 are
incorporated in the state of Delaware (Source: Delaware Secretary of State), so
this guide focuses on several key Delaware law provisions relevant to acquisitions
of US public companies incorporated in Delaware.
Please note that the legal issues that arise in the acquisition of a US public
company require careful analysis and must be addressed on a case-by-case
basis depending upon all the facts and circumstances. There is no “standard
transaction” or formula, and each acquisition is different depending on the
circumstances. This guide is not intended to be a comprehensive summary or
analysis of all the issues that may arise in the acquisition of a US public company
or a strict map of the course of a transaction, and, therefore, should not be
construed as providing specific advice with respect to any particular situation.
II. The US M&A Market
In 2014, the mergers and acquisitions (M&A) market in the US was booming, with
activity at levels not seen since before the global recession of 2009-2010. In 2014,
416 M&A deals were announced with US public companies, worth a combined
total of more than US$1.2 trillion, as compared to 338 deals worth almost US$579
billion in 2013. In the first quarter of 2015, 102 deals were announced worth a total
of more than US$354 billion (Source: FactSet MergerStat).
Transactions Value (in millions) Number of Deals
2007 2008 2009 2010 2011 2012 2013 2014
VALUE/COUNT OF US PUBLIC COMPANY M&A DEALS
US DEAL POINT:
IN A US COMPANY
Unlike many European
jurisdictions, there is no
extraordinary level of
ownership or vote required
to effect a merger that
forcibly converts shares
into merger consideration.
This affords an acquirer
seeking to own the entire
share capital of a business
the ability to quickly and
minority interests, subject
in certain cases, to a postclosing
valuation by means of an
appraisal proceeding (see
Interest in acquiring US companies is particularly strong today among non-US
acquirers, representing approximately 23 percent of public M&A transactions
announced in 2014, as compared to 15 percent of public M&A transactions in
2013 (Source: FactSet MergerStat).
III. Friendly or Hostile? Deciding on the Approach to a Target
The acquisition of a US company can be made on a friendly basis, pursuant
to a definitive agreement that has been negotiated with the target and its
board of directors, or it can be approached on a hostile basis, without the
involvement or prior approval of the board of directors of the target.1 In our
experience a negotiated transaction has numerous, distinct advantages over
a hostile transaction, including the availability of due diligence on the target,
cooperation of the target’s management, faster closing and reduced costs.
This does not mean that a hostile transaction is never the appropriate or best
strategy for an acquisition of a US public company. Our experience strongly
suggests, however, that a hostile transaction should be pursued only if the
acquirer understands the complexity and risk, and then only if the acquirer
believes negotiation will be futile or negotiated alternatives have been
exhausted. Although this guide does not cover the considerations and process
involved in starting or completing a hostile transaction, Latham & Watkins has
significant experience counseling clients on such transactions and would be
happy to discuss and outline these considerations with a potential acquirer
considering a hostile approach to a potential target.
IV. The Basics: Transaction Structures
An acquisition of a US public company generally is structured in one of two
ways: (i) a statutory merger (a merger governed by US state law) or (ii) a
tender offer (or exchange offer) followed by a “back-end” merger. We often
refer to statutory mergers as one-step mergers and tender or exchange offers
followed by back-end mergers as two-step mergers. Regardless of whether
an acquirer uses a one-step or two-step acquisition structure, the acquirer
may pay in cash, the stock of the acquirer or a combination of the two. We
summarize and compare these two acquisition structures and related process
and timing considerations for a negotiated acquisition using each structure.
WHAT IS A US PUBLIC COMPANY?
The term “US public company” as used in this guide, refers to a US company (most often a corporation) that both:
• Has securities publicly traded on a US securities exchange, the issuance of which is governed by the
requirements of the US Securities Act of 1933, as amended (the Securities Act)
• Is required to file various financial reports and other information with the US Securities and Exchange
Commission (the SEC) under the US Securities Exchange Act of 1934, as amended (the Exchange Act)
A. One-Step: Statutory Merger
A statutory or one-step merger is a merger of one legal entity into another,
as dictated by US state corporate law. A one-step merger requires that the
acquirer negotiate a definitive merger agreement with the target, which
typically must first be approved and declared advisable by the target’s
board of directors, then separately approved by the holders of the target’s
outstanding stock. This shareholder vote most commonly requires approval
of a majority of the target’s outstanding shares, but by the terms of a target’s
organizational documents’ or the requirements of some states’ corporate laws
(other than Delaware’s), a higher vote requirement can be imposed. A onestep
merger cannot be completed on a hostile basis without the approval of
the target’s board of directors.
In mergers with US public companies, the one-step transaction structure
most often takes the form of a “reverse triangular merger,” which is illustrated
below. The reverse triangular merger is the most popular one-step merger
structure used in US public company mergers today, particularly for cash
transactions. Other structures of course are available, however, and the
specific form of the merger should be determined in light of relevant tax,
accounting, governance and other business considerations.
A reverse triangular merger is performed as follows:
In 2014, approximately
59 percent of all mergers
involving US public
companies used the
(Source: FactSet Merger Metrics).
REVERSE TRIANGULAR MERGER
1. The acquirer forms a new wholly
owned US subsidiary to act as
an acquisition corporation.
2. At the effective time of the
merger, the new acquisition
corporation is merged with
and into the target, with the
target surviving the merger.
The target’s shareholders
receive the approved per-share
merger consideration upon
consummation of the merger.
3. After consummation of the
merger, the target is a wholly
owned subsidiary of the
Seeking Shareholder Approval: Filing a Proxy Statement with the SEC
Following the execution of the merger agreement, the target in the one-step
merger typically is required to file with the SEC a preliminary proxy statement
on Schedule 14A regarding the shareholder vote on the transaction. This is
the key disclosure document for shareholders (see “What is in a Typical Proxy
If the consideration in the merger includes acquirer securities, those securities
are generally required to be registered with the SEC, which means that
the transaction will also be subject to the registration requirements of the
Securities Act. In that case, the acquirer will file a registration statement on
Form S-4 (US registrant) or Form F-4 (foreign private issuer) with respect to
its issuance of acquirer securities in the merger. In addition to the information
otherwise required to be disclosed by the target in its proxy statement,
this disclosure document addresses information about the acquirer and
the acquirer securities, including certain financial information and related
projections, if deemed to be material to the transaction. The parties typically
combine their respective disclosure documents into a single document
referred to as a “proxy statement/prospectus,” and this combined document
will be filed on Form S-4 or Form F-4, as applicable, in accordance with
SEC rules.3 Further, if shareholder approval of the acquirer is required, most
commonly when the share issuance by the acquirer exceeds 20 percent of
its outstanding shares, the proxy statement will often be used as a joint proxy
statement by the parties.
WHAT IS IN A TYPICAL MERGER AGREEMENT?
• Representations and Warranties. A typical merger agreement for the acquisition of a US public company,
regardless of structure, generally will provide for representations and warranties on the part of the target,
including representations with respect to capitalization, no material adverse change, no undisclosed
liabilities, litigation, compliance with laws, accuracy of public filings, financial statements, material contracts,
employee benefits and tax matters, in addition to customary organization and structure representations.2
• Timing and Scope of Representations: These representations and warranties, which often contain
qualifications limiting their breadth and severity, are made on the date of the agreement and, in most
circumstances, are also “brought down” on the closing date of the merger.
• Conditions. The merger agreement also specifies the conditions to the consummation of the merger or, in a
two-step transaction, the tender or exchange offer and the merger.
• Indemnity. In a public company context, only very rarely would a merger agreement provide for an
indemnity from the target company in favor of the acquirer. As a result, the consequence of a target’s breach
of a representation is to afford the acquirer the right to terminate the agreement as opposed to closing over
the breach and seeking indemnity.
• Deal Protection. Generally, the merger agreement contains deal protection provisions. These may include
no-shop provisions, “fiduciary out” provisions to allow the target’s board to consider, recommend and,
in many cases, terminate to accept a superior proposal, and breakup fees, the specific language and
amount of which is negotiated on a case-by-case basis. In addition, if a target corporation has a controlling
shareholder or a shareholder with a significant ownership percentage, an acquirer sometimes receives extra
deal protection by obtaining the shareholder’s agreement to tender or exchange its shares in the offer or
vote in favor of the merger.
WHAT IS IN A TYPICAL PROXY STATEMENT?
A merger proxy statement includes information about the target, the acquirer and the merger. Among other
information and disclosures, a proxy statement will contain the following information:
• Background. A narrative section describing the background of the merger, including negotiations and
discussions and between the acquirer and target and their representatives
• Terms. A description of the merger, including a summary term sheet and a description of the approvals
(regulatory or otherwise) that must be obtained by the parties to complete the transaction
• Target Board Recommendation. The recommendation of the target’s board of directors regarding the
proposed merger and the reasons for the recommendation
• Opinion. A summary of any opinion the target obtained with respect to the fairness of the transaction
• Financials. The target’s financial statements and projections (and, if consideration includes acquirer
securities or a vote of the acquirer’s shareholders is required, financial information of the acquirer)
• Meeting and Vote. A summary of the shareholders meeting, the voting procedures and the participants in
the proxy solicitation
• Directors, Officers and Major Shareholders. Information regarding the directors, officers and beneficial
owners of five percent or more of the target’s shares
Parties to a merger must wait to receive comments from the SEC to the proxy
statement (or the proxy statement/prospectus, as applicable) and resolve all
comments received prior to distributing definitive disclosure documents to
the target shareholders. Once the preliminary proxy statement on Schedule
14A (or proxy statement/prospectus on Form S-4 or Form F-4) is filed with
the SEC, the SEC will notify the target within 10 calendar days if it intends to
review the filing. If there is an SEC review of the filing, the SEC typically takes
up to 30 calendar days from the original filing date to provide comments
to the parties. The target and acquirer will amend their filings in response
to these comments and work with the SEC to resolve any open issues. If
the SEC has additional comments, there may be additional delay, as the
disclosure document is reviewed and re-filed by the parties. This process can
take several weeks, and up to several months, depending on the nature
and extent of the SEC comments and the changes required to be made.
Target Shareholder Approval
When all SEC comments are resolved, a date for the target shareholder
meeting will be set and a definitive disclosure document, accompanied by
a proxy card to effect the vote, will be sent to the target’s shareholders. The
parties generally should provide sufficient time to ensure an active solicitation
period and an informed shareholder vote, which is typically at least 20 to
30 business days; further, under Delaware law, a meeting of the target’s
shareholders to approve a merger may not be held prior to 20 calendar days
after mailing of the proxy statement. There may be additional requirements
in a target’s organizational documents that govern the timing of and
requirements for the shareholders meeting.
Consummation of the Merger
Assuming all regulatory and other conditions to the merger have been
satisfied at the time of the shareholder vote, the acquirer would typically
complete the merger immediately following shareholder approval. The merger
process typically takes between 10 to 12 weeks from signing of the merger
agreement to completion of the merger (see Annex A).
In connection with a typical merger transaction involving cash or unlisted
shares, even if the merger is approved by a majority of the target’s
shareholders and the merger is completed, US state corporate law (including
Delaware) will provide that target shareholders who voted no or abstained
from voting on the merger generally are eligible to exercise appraisal rights to
demand a judicial determination of the “fair value” of their shares. “Fair value”
will be determined by the applicable state court and may be more than, equal
to or less than the merger consideration, provided that the shareholders follow
the statutory procedures for demanding an appraisal, and subject to certain
exceptions.4 Shareholders who vote in favor of the merger should not be
eligible for appraisal rights.
• The appraisal rights process can be lengthy, spanning one year or more
after closing, although often appraisal claims are settled in advance of a
final judicial decision.
• Shareholders exercising appraisal rights only retain the right to payment,
in cash, of the “fair value” of their shares, as determined by an applicable
state court in an appraisal proceeding.
• The target is not required to obtain a third-party valuation in connection
with the appraisal proceeding, although such valuations often are
furnished to the court as evidence of fair value.
• Shareholders do not have appraisal rights if they tender into a tender
offer — those who object to the offer simply do not tender their shares.
However, appraisal rights will be available to non-tendering shareholders
in any “back-end” or “squeeze out” merger following the consummation
of the offer if cash or unlisted shares comprise any portion of the
US DEAL POINT:
Unlike certain non-US
exercising appraisal rights
do not retain ownership
of their shares and the
appraisal rights process
does not affect the
acquirer’s ownership or
control of the target. The
acquirer will retain 100
percent ownership of
the target in the merger
without regard to whether
appraisal rights are
B. Two-Step: Tender Offer or Exchange Offer Followed by a
A tender offer or an exchange offer, followed by a “back-end” or “squeeze
out” merger, is referred to as a “two-step acquisition.” Cash offers for the
target’s shares are called tender offers and offers in which the consideration
includes acquirer securities or a combination of cash and securities are called
exchange offers. In a two-step acquisition, an acquirer first makes a public
offer to acquire the shares of the target directly to the target shareholders,
each of whom then makes an independent decision whether to sell (or
“tender”) their shares to the acquirer, in exchange for the cash and/or acquirer
securities offered. Following the completion of this “first step” tender offer or
exchange offer, the target will complete a statutory merger with the acquirer.
In a friendly transaction, the tender offer or exchange offer will be made
pursuant to a negotiated merger agreement with the target company and its
board of directors.
RECENT TRENDS IN APPRAISAL DEMANDS
Historically, shareholders rarely exercised appraisal rights, given the costs required to be incurred by the
exercising shareholders and the risk that the exercising shareholders could receive less than the merger
consideration. Recent experience suggests that appraisal rights actions are becoming more common, however,
as certain hedge funds have pursued appraisal rights as an independent investment opportunity, leveraging the
possibility of an appraisal award that exceeds the price paid in the merger and the ability to receive statutory
interest on any such award at a rate well in excess of current market interest rates.
In response to this recent trend, parties may choose to include a “dissenters rights” condition in the merger
agreement, although still relatively uncommon. These provisions state that an acquirer will not be required to
close a transaction in which holders of over a specific percentage of a target’s stock (usually between five and
fifteen percent) have exercised appraisal rights.5
WHAT IS A “SHORT-FORM” MERGER?
A “short-form” merger is the name given to a merger that is effected, following an acquirer’s purchase of a
specified percentage of a target’s shares in a tender offer, without any requirement to obtain a separate vote
of the target’s shareholders. A short-form merger can be accomplished very quickly after completion of the
tender offer or exchange offer, without the need for the additional SEC disclosure required in a typical “longform”
merger structure. Although US state corporate laws vary, in almost all cases a short-form merger can be
completed if the acquirer obtains over 90 percent of a target’s shares after the tender offer or exchange offer. In
addition, a relatively new provision of Delaware corporate law provides that, if certain procedural requirements
are met, a “short-form” merger can be completed immediately following an acquirer’s purchase of more than 50
percent of the target’s shares in a tender offer or exchange offer (see “Easing the Financing and Completion of a
Tender Offer: DGCL Section 251(h)”).
Those shareholders who do not tender their shares and are subsequently squeezed out retain appraisal rights
and other rights afforded to them as shareholders under Delaware or other applicable state law.
In order to commence its offer, on the date of commencement the acquirer
files with the SEC and distributes to the target shareholders a Schedule
TO, to which an “Offer to Purchase” (for a tender offer) or “Exchange Offer/
Prospectus” (for an exchange offer) is attached as an exhibit. The Schedule
TO contains detailed information about the acquirer, the acquirer’s offer to
purchase and details about the terms and conditions of the offer, including
financial information and a description of the factual background of the
transaction similar to a merger proxy statement.6
An acquirer issuing securities as full or partial consideration in the offer must
also register the offered shares under the Securities Act by filing with the SEC
a registration statement on a Form S-4 or Form F-4. The Form S-4 or Form
F-4 primarily includes the Exchange Offer/ Prospectus also filed as an exhibit
to Schedule TO.
The target’s board of directors must also file with the SEC a recommendation
statement (filed on a Schedule 14D-9) regarding the target’s position on the
offer within 10 days following its commencement. In a friendly negotiated
transaction, the Schedule 14D-9 will contain disclosure substantially identical
to that in the Schedule TO, and be filed contemporaneously.
If enough shares are tendered in the tender or exchange offer (typically
50 percent to two thirds of the target’s shares, depending on the
circumstances of the offer and applicable state corporate law — for more
detail, see “Completion of the Transaction”), then the acquirer will purchase
those shares and, immediately afterward (subject to any required US
regulatory clearances), the target may perform a back-end merger and
“squeeze out” those shareholders who did not tender their shares in the offer
by converting their shares into the right to receive the per-share consideration
paid in the offer.
A typical two-step acquisition is structured as follows:
1. The acquirer makes the “first
step” tender offer directly to the
target’s public shareholders.
2. A “second step” merger is
required to acquire the remaining
3. After the consummation of the
back-end merger, the target is a
wholly owned subsidiary of the
Conditions to the Offer
The acquirer’s obligation to accept and pay for the target shares tendered is
generally subject to a number of conditions, which are outlined in its Offer to
Purchase, the most important of which is the so-called “minimum condition” to the
offer. The minimum condition of the offer is the minimum number of target shares
(generally at least 50 percent) that must be tendered or exchanged in order for the
acquirer to be obligated to purchase the shares. The vote and merger would be
assured, however, if the bidder’s offer’s minimum condition is the exchange of a
sufficient number of shares to ensure the vote required to approve the “long-form”
merger. In many US states, including Delaware, only a majority of the target’s
shares must be tendered to ensure such approval, and therefore, the minimum
condition is typically expressed as a majority of the target’s shares on a fully
Unlike in many non-US jurisdictions, a tender offer may be expressly conditioned
on receipt of third party debt financing, although this type of condition would be
viewed to weaken the strength of the tender offer.
Timing of the Offer
A tender offer or exchange offer must remain open for at least 20 business days.7
Target shareholders may tender or exchange their shares, and have the right to
withdraw their shares, at any time prior to the date of expiration of the offer. The
acquirer may be required to extend the offer period if there has been a material
change in the terms of the tender offer.
Once the acquirer has commenced the tender offer, the SEC may review and
comment on the Schedule TO. In most cases, the SEC’s comments are addressed
by filing an amendment to the Schedule TO, but if the comments are significant,
the SEC may require the acquirer to mail a supplement to the Offer to Purchase to
the target’s shareholders and, depending on when the offer is scheduled to expire,
may also require an extension of the offer period for up to 10 business days.
An exchange offer cannot close until the SEC declares “effective” the acquirer’s
registration statement that is related to the registration of the acquirer‘s shares
offered as consideration in the exchange offer. While the SEC has committed
publicly to provide comments in a manner timely to facilitate a 20-business-day
offer period, our experience has been that review of the acquirer’s registration
statement can result in extensive comments, to which the acquirer may need to
take several weeks to respond.
Completion of the Transaction
Following the expiration of the tender offer or exchange offer and purchase of the
tendered shares, the acquirer and the target will work to complete a back-end
statutory merger (most often via the reverse triangular merger structure described
in the previous section).
• The acquirer and target may consummate a back-end merger immediately
following the acquirer’s purchase of shares in the tender/ exchange offer, if
• The acquirer owns shares sufficient to effect a short-form merger; which
in Delaware is at least 90 percent of each class of the target’s outstanding
voting shares after the expiration of its offer (including shares the acquirer
owned prior to its consummation of the tender offer, if any, and shares
purchased in the offer).
• In Delaware, if the acquirer owns shares of the target’s outstanding
shares after the expiration of its offer sufficient to approve a long-form
merger and DGCL Section 251(h) is applicable to the transaction
(see “Easing the Financing and Completion of the Tender Offer:
DGCL Section 251(h)”).
• If the short-form merger is not initially available or if DGCL Section
251(h) is not available to an acquirer (i.e. if the target is not incorporated
in Delaware or if the acquirer does not otherwise qualify to use DGCL
Section 251(h)), the acquirer has two other options available:
1. The acquirer can try again to reach the 90 percent threshold
necessary to effect a short-form merger by using a “clean-up” offer or
• The SEC allows a post-tender offer “clean-up” offer, which allows
the initial offer to close and a “subsequent offering period” to be
• Delaware law also allows the target to grant the acquirer a “topup”
option (which is established in the merger agreement), in
which the target issues to the acquirer the additional shares
necessary to achieve 90 percent ownership, though the adoption
of Section 251(h) has significantly reduced the use of this option
and some legal and practical limitations on its utility do exist.
2. The acquirer can consummate the acquisition on a “long-form” basis.
• Requirements for a long form merger are those described in
Section IV(A), above (“One-Step: Statutory Merger”), above with
respect to a one-step merger, including the filing with the SEC
and dissemination of a proxy statement and obtaining target
• Note that the vote and merger would be assured, as the
acquirer’s tender offer will contain a minimum condition such that
a sufficient number of shares were tendered to ensure the vote
required to approve the long-form merger.
Between January 2013
and December 2014, a
total of 29 transactions
structured as twostep
non-US acquirers and
US public companies,
compared to a total of
116 one-step mergers
between such parties
during the same period
(Source: FactSet MergerStat).
C. One-Step or Two-Step? Deciding Which Structure to Use
Cash Consideration: Two-Step Structure Generally Preferred. In a negotiated cash
transaction, the tender offer/back-end merger transaction structure is often preferred
to a one-step merger structure for a number of reasons, including speed and control of
• A tender offer can be completed in as little as 20 business days and without
a shareholder meeting, compared to the more lengthy SEC review and proxy
solicitation process required in the one-step merger structure.8
• The acquirer in a tender offer can obtain control of the target relatively quickly, and
prior to the back-end merger (this is especially important in circumstances in which
other parties may be interested in topping the primary bid).
• The acquirer typically will negotiate for the right to appoint a number of
directors to the target’s board (and will require the corresponding resignation
of an equivalent number of the target’s directors) based on the percentage of
shares acquired in the tender/exchange offer. An acquirer purchasing more
than 50 percent of the outstanding shares of the target in its tender offer or
exchange offer will, promptly following the purchase of shares, have the ability
to appoint a majority of the target board and control the vote of a majority of
the shares pending completion of the back-end merger.
• In a one-step structure, because the acquirer acquires 100 percent of the
stock of the target in a single transaction at the effective time of the merger,
the acquirer will not be able to control the target, or have the ability to replace
a portion of its board of directors, until the merger has occurred. The merger
might take a prolonged period of time, depending on the timing of SEC review
of the proxy statement filed in connection with the merger, providing interlopers
a longer period in which to top the primary bid.
• The target shareholders can receive the transaction consideration in a tender offer
faster than in a one-step merger.
EASING THE FINANCING AND COMPLETION OF A TENDER
OFFER: DGCL SECTION 251(h)
In August 2013, Section 251(h) of the Delaware General Corporation Law (DGCL) was adopted to allow an
acquirer to effect a back-end merger following acquisition of more than 50 percent of a Delaware target’s
outstanding shares (i.e. the percentage necessary to approve a merger), without needing to obtain the approval
of those target shareholders who did not tender their shares in the tender offer.
• DGCL 251(h) requires that in order for the acquirer and target to effect this type of back-end merger, they
must meet a number of conditions, including:
• The parties must opt-in to the regime by stating in the definitive agreement that the merger is expressly
permitted or required to be effected under Section 251(h).
• The acquirer must consummate a tender offer for all outstanding shares of the target that would be
entitled to vote to adopt the merger agreement.
• After the tender offer, the acquirer must own (or have accepted for purchase/payment) at least the
percentage of shares of the target that would be required to approve the merger agreement.
NOTE: Between the August 1, 2013 adoption of DGCL Section 251(h) and March 31, 2015, 53 out of 70, or
76 percent, of the tender offers governed by Delaware law opted to utilize the section (source: FactSet
Stock Consideration: One-Step Structure Preferred. If acquirer stock is
used (in whole or in part, in combination with cash) as consideration in the
acquisition, a merger is almost always preferred over an exchange offer
because the acquirer shares issued to target shareholders in the transaction
will need to be registered with the SEC, which requires SEC review and
usually obviates any timing advantage of the two-step process. While the
SEC has attempted to balance the treatment of tender offers and exchange
offers by affording expedited review of the registration documentation filed
in connection with exchange offers, the vast majority of US public company
acquisitions involving consideration consisting in whole or in part of stock are
Expected Extended Regulatory Review: One-Step Structure Preferred.
In certain regulated industries, the antitrust or other regulatory approval
process may be lengthy, eliminating the timing advantage of using the twostep
structure. Typically, regulatory approval is required for an acquirer to
purchase a significant amount of the target’s shares. Because the target
shareholders have the right to withdraw their shares at any time prior to
the expiration of the offer period, an extended regulatory review period,
and consequently extended offer period, potentially exposes the acquirer
to additional risk that an interloper may try to top the primary bid during the
extended period. For this reason, parties usually prefer a one-step merger
structure, in which they can obtain the approval of the target shareholders
prior to the acquirer’s purchase of target shares, if antitrust or other regulatory
review is expected to take significantly more time than the typical offer period
and will preclude purchase of target shares until the review is complete (see
“L&W Deal Note: Dual-Track Acquisition Structure in the Face of Regulatory
Delay” for an example of a way one acquirer managed this regulatory review
DAYS BETWEEN SIGNING OF MERGER AGREEMENT AND CLOSING
Between January 1, 2012
and December 2014, 98
percent of US public
that included stock as
structured as one-step
mergers. (Source: FactSet
Source: FactSet MergerStat. For completed
US public company deals announced after
January 2013 and before January 2015 and
valued over $50 million.
V. Regulatory Approvals and Other Considerations
The non-US acquirer should also be aware of several other important US
company considerations faced by the parties to a US public company
acquisition, including (but not limited to) the specific filing and disclosure
obligations of federal securities laws, US federal banking regulations
regarding margin stock, limitations on trading in non-public information and
rules regarding the disgorgement of short swing profits. In addition, a non-US
acquirer may need to obtain US regulatory review and approval (including,
for example, approval under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the HSR Act) and review under the Exon-Florio
Amendment to the Defense Production Act of 1950 (Exon-Florio) (a so-called
“CFIUS Review”)) prior to completing the acquisition of a US public company.
As noted below, the parties should expect HSR approval to take at least
30 calendar days after filing of a pre-merger notification form, which can be
filed upon signing of the merger agreement. Specific approvals required will
depend on the size of the target and the target’s and the acquirer’s industries.
The HSR Act and its Requirements
The HSR Act generally requires that an acquisition that results in the acquirer
owning more than a certain amount (in 2015 it is US$76.3M; this amount is
indexed annually for inflation) of the target’s assets or voting securities cannot
be completed until a statutory waiting period has expired or terminated.
To commence this waiting period, the acquirer is required to file a premerger
notification form with the US Federal Trade Commission (FTC) and
Department of Justice (DOJ). The information included in this form permits
the FTC and DOJ to review the potential competitive implications of the
transaction. Following this review, the FTC and DOJ could make a “second
request” for information, which would substantially lengthen the delay before
the acquirer could complete the transaction. In attempting to resolve antitrust
issues that arise as a result of the “second request,” the FTC and DOJ may
demand concessions or divestitures from the parties to the transaction or
seek to block the acquisition altogether.
The requisite waiting period under the HSR Act is 30 calendar days for all
transactions other than tender offers and 15 calendar days for tender offers.
Parties to a transaction generally seek to file such notification as promptly as
practicable to start the clock on the waiting period.
When a non-US acquirer seeks to acquire a US target, if the target’s business
includes US infrastructure, technology or energy assets, the acquirer and
the target may need to file a notification with the Committee on Foreign
Investment in the United States (CFIUS) if the acquisition is deemed covered
by Exon-Florio, which allows the US President to prevent a foreign company
acquiring a US company if the President views the acquisition as a threat to
national security. Although Exon-Florio does not include a mandatory filing
requirement like the HSR Act, parties generally give notice of an acquisition if
there is a reasonable likelihood that the US government could see the target
as a participant in, or vital to, US national security.
Mergers and acquisitions commonly mark significant milestones in the
life of a public company and include a great degree of complexity. Given
the numerous strategic and practical issues, as well as detailed US legal
requirements, a party considering an acquisition of a US-based public
company should understand the imperative to engage experienced legal
counsel to help guide them through the process. Every such acquisition
should be carefully analyzed on a case-by-case basis. In order to help a client
formulate the acquisition strategy that works best for that client’s particular
needs, we generally will prepare a takeover analysis, which consists of a
review of publicly available documents and a written summary of salient legal
issues. Attached as Annex A is a comparative timeline setting forth certain
relevant steps in the timing of a cash tender offer, an exchange offer and a
Please do not hesitate to contact any of us if you have any further questions
or comments about the foregoing.
1 An acquirer can utilize a broad range of approaches to a potential target, which range
in “hostility” from approaching the target’s board of directors in a friendly manner to
launching a tender offer without notifying the target or its board. When making this
decision, the acquirer’s legal and financial advisors will provide analysis of the strategic
implications of each approach. Notably, in most circumstances, hostile offers serve as
a means to bring a target to the bargaining table, rather than as the ultimate means of
acquiring a target company.
2 In a transaction in which the consideration consists in whole or in part of acquirer
securities, the acquirer would also make representations in the merger agreement.
Notably, the more equal in size the acquirer and the target are, the more appropriate it is
for the parties’ representations and warranties to mirror each other.
3 Mergers are primarily regulated by the SEC through the proxy rules pursuant to Section
14(a) of the Exchange Act and Regulation 14A thereunder. When the consideration
includes acquirer securities, mergers also are governed by the Securities Act. The
required disclosure in a cash merger is set forth in Schedule 14A, the required
disclosure for a non-US acquirer in merger that includes acquirer securities as
consideration is set forth in the Registration Statement on Form F-4 and the required
disclosure for a US acquirer in merger that includes acquirer securities as consideration
is set forth in the Registration Statement on Form S-4.
4 One such exception, which is provided for in several US states’ corporate laws, including
Delaware, provides that shareholders of a publicly traded target corporation with stock
held of record by more than 2000 shareholders will not be entitled to appraisal rights
in transactions in which the consideration to be received by those target shareholders
consists solely of the securities of the acquirer. This exception only applies when the
acquirer is also a large, publicly traded corporation with stock held of record by more
than 2000 shareholders.
5 In 2014, approximately five percent of US public company merger agreements for
transactions over US$100 million included so-called “dissenting shareholder” provisions
Source: FactSet MergerMetrics.
6 Tender offers are governed by Section 14(d) of the Exchange Act and Regulations 14D
and 14E promulgated thereunder. Exchange offers are further regulated by the stock
issuance rules under the Securities Act. The detailed requirements of the disclosure
required in an Offer to Purchase and Exchange Offer/ Prospectus are set forth in the
instructions and items of Schedule TO, the requirements and disclosure required for a
non-US acquirer to register its shares for exchange are set forth in the instructions to
Form F-4, and the requirements and disclosure required for a US acquirer to register
its shares for exchange are set forth in the instructions to Form S-4. During the period
after the public announcement and prior to the commencement of the offer, all written
communications regarding the offer must be separately filed on Schedule TO on the
date first used.
7 This time period is dictated by Regulation 14E promulgated under the Exchange Act.
8 Note that in certain regulated industries, the regulatory approval process may take
longer than the SEC review and shareholder approval process required in a one-step
merger, eliminating the timing advantage of using the two-step structure (see “Expected
Extended Regulatory Review: One-Step Structure Preferred”).
ANNEX A ILLUSTRATIVE TIMELINE – PUBLIC CASH TRANSACTIONS
ILLUSTRATIVE TIMELINE – PUBLIC STOCK TRANSACTIONS
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