M&A Legal Context: Standards Related to the Sale or Purchase of a Company

Carliss Y. Baldwin; Constance E. Bagley; James  Quinn

Background Note | HBS Case Collection | July 2003 (Revised February 2004)

M&A Legal Context: Standards Related to the Sale or Purchase of a Company

by Carliss Y. Baldwin, Constance E. Bagley and James Quinn

Abstract

Introduces students to the legal standards affecting officers and directors when selling or purchasing a company. Provides a practical understanding of the Revlon Standard, the Securities and Exchange Act of 1934, Rule 10b-5, and the legal criteria for a cause of action for securities fraud. Recounts three precedential cases decided by the Delaware Supreme Court.

Keywords: Laws and Statutes; Law Enforcement; Government Legislation; Acquisition; Business Exit or Shutdown; Corporate Governance; Going Public; Courts and Trials;

Format: Print

10 pages

Educators Purchase

Citation:

Baldwin, Carliss Y., Constance E. Bagley, and James Quinn. "M&A Legal Context: Standards Related to the Sale or Purchase of a Company." Harvard Business School Background Note 904-004, July 2003. (Revised February 2004.)

In March 2013, Apple Computer has a very large cash balance, and is under pressure to return cash to shareholders. Hedge fund manager David Einhorn thinks Apple can "unlock value" by issuing perpetual preferred stock, dubbed iPrefs. Henry Blodget, CEO of Business Insider, disagrees, saying "you can't just wave your magic wand and make something of nothing." This short case is designed to support a discussion of "perfect" markets and the Modigliani-Miller capital structure irrelevance propositions. The case focuses on two questions: (1) From a shareholder's perspective, how is Apple's cash different from cash in a bank or money market account? (2) Can Apple create significant value for shareholders by splitting each common share into an iPref plus a common share?

The purpose of this chapter is to investigate the means by which firms capture value in open platform systems. I begin by arguing that the surplus value created by complementarities within a technical system will be split among the owners of the unique and essential components—the strategic bottlenecks in the system. However, most platforms must also execute a series of steps that are subject to “flow production” bottlenecks. Finding and fixing these flow bottlenecks is another way to capture value. In addition, two types of platform improvements provide further opportunities for value capture. “Accelerators” speed up the processing of options, while “subsidiary” platforms increase the range of options available to users. Finally, members of a platform system or new entrants may seek to supplant the owner of a strategic bottleneck by “disintermediating” platform components. I describe four generic methods of disintermediation: substitution, reverse engineering, platform independent complements, and platform envelopment.

The purpose of this chapter is to use the theory of bottlenecks laid out in previous chapters to better understand the dynamics of an open standards-based platform. I describe how the Wintel platform evolved from 1990 through 2000 under joint sponsorship of Intel and Microsoft. I first describe a series of technical bottlenecks that arose in the early 1990s concerning the “bus architecture” of IBM-compatible PCs. Intel’s management of buses demonstrates how, under conditions of distributed supermodular complementarity, a platform sponsor can reconfigure the modular structure of a technical system, property rights within the system, and its own zone of authority to increase system-wide throughput, while protecting its own strategic bottleneck from disintermediation. I go on to describe how Microsoft used platform envelopment to establish a second strategic bottleneck in productivity software and later to respond to the threat of disintermediation from platform-independent internet browsers. I end the chapter by discussing the conditions under which shared platform sponsorship can be a long-term dynamic equilibrium.

Faculty & Research

M&A Legal Context: Standards Related to the Sale or Purchase of a Company

Abstract

Citation:

About the Author

More from the Author