Citation:
Subramanian, Guhan, and Raaj Zutshi. "HIG's Acquisition of Comverge." Harvard Business School Case 918-043, April 2018. (Revised April 2020.) View Details|
Article Stanford Law Review April 2017 The New Look of Deal Protection |
Abstract
Deal protection in mergers and acquisitions (M&A) evolves in response to Delaware case law and the business goals of acquirers and targets. We construct a new sample of M&A deals from 2003 to 2015 to identify four such areas of evolution in current transactional practice: (1) termination fee "creep," which was pervasive in the 1980s and 1990s, seems to have gone away by the 2000s; (2) match rights, which were unheard of in the 1990s, became ubiquitous by the 2010s; (3) asset lockups, which disappeared from the landscape for thirty years, have reemerged, though in a "new economy" variation; and (4) practitioners have begun implementing side agreements to the deal that have a commercial purpose along with a deal protection effect. We offer three recommendations for how the Delaware courts should approach this "new look" to the deal protection landscape. First, courts should clarify that lockups must survive Unocal/Unitrin "preclusive" or "coercive" analysis in addition to Revlon "reasonableness" review. Second, Delaware courts should apply basic game theory to identify the deterrent effect of match rights and new economy asset lockups. And third, Delaware courts should take a functional approach to deal protection, meaning that collateral provisions that have a deal protection effect should be scrutinized under deal protection doctrine, even if these agreements have a colorable business purpose as well.
Keywords: Mergers and Acquisitions; Practice;
Citation:
Subramanian, Guhan, and Fernán Restrepo. "The New Look of Deal Protection." Stanford Law Review 69, no. 4 (April 2017): 1013–1074.
