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FDA Deskbook: A Compliance and Enforcement Guide
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The Circular 230 Deskbook: Related Penalties, Reportable Transactions, Working Forms
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Private Clients Legal & Tax Planning Answer Book
Transfer Pricing Answer Book
Volume 1
LCCN: 2010931357
ISBN: 978-1-4024-1443-5
This book is dedicated with love, affection, and thanks
particularly proud that he was able to play, albeit not so well, on the
varsity football team at his undergraduate school, West Chester
University.
Sam is the proud father of a four-year-old, Samuel C. Thompson, III
(Tommy), who likes football even more than his dad.
x
Preface
This book addresses a wide range of legal and regulatory topics arising
in mergers and acquisitions (M&A), including corporate, securities,
antitrust, accounting, valuation, ethics, and federal and state income
tax. As set forth more completely in chapter 1, this book is divided into
eight parts:
Part I, Contract Law and Related Considerations in M&A,
Including Drafting of Acquisition Agreements;
Part II, Corporate Law Considerations in M&A;
Part III, Federal Securities Law Considerations in M&A;
Part IV, Federal Income Tax, Accounting, and Valuation
Considerations in M&A;
Part V, U.S. Substantive Antitrust and Pre-Merger Notification
Considerations in M&A;
Part VI, Domestic M&A Transactions Presenting Unique
Issues;
Part VII, Cross-Border Considerations in M&A; and
Part VIII, Special Topics.
The principal purpose of this book is to provide a guide for deal
lawyers to the diverse issues that can arise in M&A transactions.
Thus, the book does not exhaustively treat any of these topics and,
therefore, when facing a particular issue, the attorney may have to
refer to other materials, many of which are contained in the “Refer-
ences” section of each of the chapters. This book contains a large
number of documentary appendices, such as acquisition agreements,
that were used in significant real-world transactions. Because each
document a lawyer prepares must be tailored to the specific facts of the
transaction, these appendices can only be used as starting points in
drafting documents for actual transactions.
Part I, Contract Law and Related Considerations, looks at issues
arising in drafting acquisition agreements, confidentiality agreements,
and letters of intent. Part I also examines the due diligence process.
Part II, Corporate Law Considerations, examines (1) the voting and
appraisal rules for mergers and sales of assets, and (2) directors’
fiduciary duties in M&A, including the fiduciary duties applicable to
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Preface
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Preface
years. Here at Penn State, I have had great assistance from the
following past and present students: Marc Boiron, Roycelyn Michelle
Boldon, Albert Brewster, Brian Doyle, Ruel Fernandes, Ryan Fleischer,
Steven Jayson, Jacob Mattinson, James Meizanis, Becky Sue
Thompson, and Manuel Ugarte. This project started when I was on
the faculty of the UCLA School of Law, and Melissa Garcia, then a
UCLA student, provided me with excellent assistance.
Fourth, thanks to the input from many of my faculty colleagues,
and many students in my M&A courses, at Penn State and at the other
law schools where I have served as a full-time or visiting professor:
Northwestern; University of Virginia; UCLA; Miami; Yale; the
University of Pretoria School of Law, Pretoria, South Africa; and the
Vienna University of Economics and Business, Vienna, Austria.
Fifth, most professionals have a special person who has helped out
at crucial crossroads in their careers. Although there are many people
who have assisted me along the way, one person stands out in my
mind, Richard J. Hoskins. In 1971, I met Richard, then an associate at
Davis Polk, my first day at that firm, and we have been close friends
since. He helped me get my first law teaching job at Northwestern,
where he went to law school and now is a Senior Lecturer. He also
recruited me to join him at Schiff Hardin, where we both served as
partners for many years. Thus, his actions have touched both the
teaching and practice sides of my career, and he will always be a special
person to me.
Sixth, I thank the people at the Practising Law Institute who have
assisted with this project. In particular, thanks to (1) Kelliann
Kavanagh for her excellent work as the editor for the book, and
(2) William Cubberley, the project manager. It has been a pleasure
working with both of them.
Seventh, thanks to my administrative assistants, who have assisted
me on this book here at Penn State: Denise Kowalski, who worked
with me from the time I joined Penn State in 2007 through 2010; and
Cathy Dittman, who has been here since July 2010.
Eighth, thanks to Dean Philip McConnaughay and the Penn State
Dickinson School of Law for providing me with the research support
required for this multi-year project.
Finally and most importantly, I thank my wife, Becky, and our four-
year-old son, Samuel C. Thompson, III (Tommy), for their love,
support, and encouragement.
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Table of Chapters
VOLUME 1
Chapter 1 Introduction
PART I
CONTRACT LAW AND RELATED CONSIDERATIONS
IN M&A, INCLUDING DRAFTING OF ACQUISITION
AGREEMENTS
Chapter 2 General Principles in Drafting an Acquisition
Agreement—Merger Agreement, Asset Acquisition
Agreement, and Stock Purchase Agreement
Chapter 3 Confidentiality Agreements, Due Diligence, Letters
of Intent and Exclusivity Agreements
PART II
CORPORATE LAW CONSIDERATIONS IN M&A
Chapter 4 Structuring Mergers, Asset Acquisitions, and
Compulsory Share Exchanges
Chapter 5 Fiduciary Duties of Directors, Officers, and
Controlling Shareholders
VOLUME 2
PART III
FEDERAL SECURITIES LAW CONSIDERATIONS IN M&A
Chapter 6 Introduction to the ’33 and ’34 Acts and Exemptions
in Acquisitions of Closely Held Targets
Chapter 7 Impact in Negotiated Public Company M&A of the
’33 and ’34 Acts
Chapter 8 Tender Offers, Open Market Purchases, and Going
Private Transactions
PART IV
FEDERAL INCOME TAX, ACCOUNTING, AND VALUATION
CONSIDERATIONS IN M&A
Chapter 9 Federal Income Tax Considerations in Taxable and
Tax-Free Domestic M&A
Chapter 10 Financial and SEC Accounting Considerations
Chapter 11 Valuation Considerations in M&A and Dealing with
Investment Bankers
PART V
U.S. SUBSTANTIVE ANTITRUST AND PRE-MERGER
NOTIFICATION CONSIDERATIONS IN M&A
Chapter 12 U.S. Substantive Antitrust Analysis
Chapter 13 U.S. Pre-Merger Notification
VOLUME 3
PART VI
DOMESTIC M&A TRANSACTIONS PRESENTING
UNIQUE ISSUES
Chapter 14 Introduction to Leveraged Buyouts
Chapter 15 Introduction to Spin-Offs: Tax, Corporate,
Securities, and Fraudulent Conveyance Issues
Chapter 16 Bankruptcy M&A: The TWA and Lehman Bankruptcy
Sales
Chapter 17 M&A Involving Bank Holding Companies, Including
Impact of the Dodd-Frank Act
Chapter 18 Introduction to M&A in FCC, FERC and Aviation
Regulated Industries
PART VII
CROSS-BORDER CONSIDERATIONS IN M&A
Chapter 19 Introduction to Corporate, Securities, Tax, Antitrust,
and Exon-Florio Issues in Inbound Cross-Border
M&A
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PART VIII
SPECIAL TOPICS
Chapter 23 State Income Tax Considerations in Taxable and
Tax-Free M&A
Chapter 24 Joint Ventures
Chapter 25 Checklist Guide to Structuring M&A Transactions
Chapter 26 Ethical Issues in M&A
Chapter 27 Deal Lawyer’s Guide to Health Care M&A
Chapter 28 Shareholder Activism and Merger Arbitrage
VOLUME 4
Appendices to Chapters 2, 3, 5, 6, 7
VOLUME 5
Appendices to Chapters 8, 9, 10, 11, 13, 14, 15,
16, 17, 18, 19, 20, 22, 24, 27, 28
VOLUME 1
Chapter 1 Introduction
§ 1:1 Scope of Book ................................................................... 1-4
§ 1:2 Scope of Chapter ............................................................ 1-10
§ 1:3 Introduction to Consensual Transactions ...................... 1-10
§ 1:3.1 The Starting Point: Valuation and Due
Diligence.................................................................. 1-10
§ 1:3.2 Structuring the Transaction: Tax and
Corporate Law Considerations ................................ 1-11
[A] In General ............................................................... 1-11
[B] Stock Purchase Structure ......................................... 1-12
[C] Asset Purchase Structure ......................................... 1-12
[D] Direct Merger Structure........................................... 1-13
[E] Reverse Subsidiary Merger Structure ....................... 1-14
[F] Forward Subsidiary Merger Structure ...................... 1-15
[G] Compulsory Share Exchange Structure ................... 1-16
[H] Short-Form Merger Structure .................................. 1-17
§ 1:3.3 Drafting the Acquisition Agreement ....................... 1-18
§ 1:3.4 Federal Securities Laws Considerations................... 1-19
§ 1:3.5 Antitrust, Pre-Merger Notification, and
Regulatory Considerations....................................... 1-19
§ 1:4 Introduction to Tender Offers and Related
Transactions ................................................................... 1-20
§ 1:5 Do the Shareholders of the Target and Acquirer
Benefit in Mergers and Acquisitions?............................. 1-23
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PART I
CONTRACT LAW AND RELATED CONSIDERATIONS
IN M&A, INCLUDING DRAFTING OF ACQUISITION
AGREEMENTS
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CORPORATE LAW CONSIDERATIONS IN M&A
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Table of Chapters ...........................................................................vii
PART III
FEDERAL SECURITIES LAW CONSIDERATIONS IN M&A
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VOLUME 3
Table of Chapters ...........................................................................vii
PART VI
DOMESTIC M&A TRANSACTIONS PRESENTING
UNIQUE ISSUES
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SPECIAL TOPICS
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VOLUME 4
Table of Chapters ...........................................................................vii
Appendices in Volume 4 .................................................V4-App.–1
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Table of Chapters ...........................................................................vii
Appendices in Volume 5 .................................................V5-App.–1
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