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2008 M&A Deal Points Study

By Harvard Law School Program on Corporate Governance

This post is by my partner Keith A. Flaum.

The Committee on Mergers & Acquisitions of the American Bar Association’s Section of Business Law recently released the 2008 Strategic Buyer/Public Target M&A Deal Points Study. I am the Chair of the Committee’s M&A Market Trends Subcommittee, which oversaw the preparation of the Study, and Jim Griffin of Fulbright & Jaworski in Dallas is the Chair of the working group that compiled the Study.

The Study examines key deal points in acquisitions of publicly traded companies by strategic buyers announced in 2007. It also compares the data from the 2007 deals to the data from the Subcommittee’s prior studies of public company acquisitions, which cover deals announced in 2004, 2005 and 2006.

Among the many interesting findings of the Study is that 48% of the acquisition agreements in the Study sample contained a non-reliance clause?a clause to the effect that the target is not making, and the buyer is not relying on, any representations regarding the target’s business except for the specific representations expressly provided in the acquisition agreement. By comparison, only 18% of the acquisition agreements for deals announced in 2005 and 2006 included a non-reliance clause.

So why the significant increase? One possible explanation might be found in the February 2006 decision of the Delaware Court of Chancery in ABRY Partners, and the extensive discussion of that case by leading M&A practitioners throughout the country. In ABRY Partners, Vice Chancellor Strine underscored the effectiveness of a non-reliance clause in limiting a buyer?s fraud-based remedies in the context of an acquisition of a privately-held company. Even though ABRY Partners involved a privately-held target, the extensive discussion that followed also focused on the potential usefulness of non-reliance clauses in deals involving publicly traded target companies. Then, in late 2007, the Tennessee Chancery Court decided Genesco, Inc. v The Finish Line, Inc. In that case, a non-reliance clause in the merger agreement was viewed by the Court as an important element in its determination that Finish Line failed to prove that the publicly traded target company, Genesco, fraudulently induced Finish Line to enter into the merger agreement.

My colleague, Rick Climan, former Chair of the Committee on Mergers & Acquisitions, who acted as special advisor on the Deal Points Studies, points out that some of the targets involved in the 52% of the acquisition agreements in the Study sample that did not include a non-reliance clause may nonetheless have enjoyed the protection afforded by a non-reliance clause, in those cases where such a clause was included in the confidentiality agreement between the buyer and the target. In fact, in Genesco, the Court pointed to non-reliance clauses in both the confidentiality agreement and the merger agreement to support its decision.

It will interesting to see the results of our 2009 study on this issue.

In addition to Jim Griffin, Wilson Chu and Larry Glasgow, the former co-chairs of the M&A Market Trends Subcommittee, and more than 20 M&A lawyers from major law firms across North America, assisted in the Study. Their names are listed in the Study.

The Study is available here.

Full post as published by The Harvard Law School Corporate Governance Blog on December 07, 2008 (boomark / email).