The German M&A market has fared well over the summer. The Bain/Cinven consortium successfully closed its takeover bid for Stada at the second attempt. Linde shareholders can now accept the exchange offer to merge with Praxair and the Hong Kong-based CK Group wins out in the bidding for smart-metering specialist ista. Toward the end of the third quarter, TyssenKrupp and Tata Steel announce their intention to enter into a steel joint venture. Fortum is working on the takeover of Uniper. Continue reading.

On 29 August 2017, the UK Government published its response to its recent consultation on UK corporate governance reform. The Government has proposed 12 reforms to the UK corporate governance regime, centered around executive remuneration, employee and other stakeholder representation and corporate governance in large privately-held businesses. In this memorandum, we briefly explore each of the proposed reforms.

Click here, to continue reading.

For the past several years Cleary Gottlieb has published legal and practical information regarding German public M&A transactions.  For the new edition of the compilation Public Bids and Squeeze-Outs in Germany, a Statistical Survey (2002 – 2016), we have collected and analyzed information related to public bids and squeeze-outs in Germany from January 2002 through December 2016. Continue Reading Public Bids and Squeeze-Outs in Germany, a Statistical Survey (2002-2016)

U.S. and European companies continue to receive bids to sell themselves and their significant assets to companies based in the People’s Republic of China.  Evaluation of these proposals requires due diligence of the acquiror’s ownership structure, assets, cash position, and financing sources.  Moreover, even if this due diligence exercise gives rise to satisfactory results, the continued unpredictability of the PRC government (including its recently enhanced foreign exchange control measures), coupled with the ties of some of these buyers and financing sources to governmental entities in the PRC, as well as the challenges that a non-PRC counterparty faces when seeking to enforce contractual obligations and non-PRC judgments in PRC courts, merit the implementation of an array of innovative provisions in M&A Agreements to protect the seller/target.  Several months ago, we reviewed these provisions in a popular post.  This new post updates that earlier post to reflect recent regulatory developments and the evolution of market practice. Continue Reading An Updated Look at How M&A Agreements Handle the Risks and Challenges of PRC Acquirors

On 7 July 2017, the UK Takeover Panel published Practice Statement No 31, which describes the way in which the Panel Executive normally interprets and applies certain aspects of the Takeover Code when a company wishes to seek bidders for itself, typically via an announcement of a formal sale process or a strategic review that may result in a sale. The publication of PS31 indicates that the Executive intends to be more prescriptive about the application of the Code to auctions conducted by the target company. The key rules of the Code affected by PS31 are Rule 2 (secrecy and announcements), Rule 21.2 (deal protection measures) and Rule 21.3 (equality of information between bidders).

Please click here to read the full alert memorandum.

The German M&A market holds its ground; despite falling transaction volumes, transaction values are on the rise. Q2/2017 sees Fresenius agree both the acquisition of U.S. competitor Akorn and that of Merck’s biosimilars business. John Deere acquires road construction equipment manufacturer Wirtgen. 1&1 Telecommunications and Drillisch are set to be brought under the umbrella of United Internet and German property group TLG presents WCM exchange offer. Continue Reading.

The German M&A market has remained active in Q1/2017: General Motors agreed the sale of Opel to Peugeot, Henkel made another US acquisition with Darex, and Clayton Dubilier & Rice sold the industry packaging specialist Mauser on to BWAY. The merger between Linde and Praxair is imminent. The London Stock Exchange and Deutsche Börse merger, however, looks set to fail due to Brexit, among other factors. Continue Reading

M&A transaction documents often contain an exclusion or limitation of the seller’s liability for “consequential”, “indirect” or “special” losses suffered by the purchaser.   For instance, a purchase agreement will often provide that the liability of the seller under the warranties does not extend to these types of losses.

It appears that purchasers often agree to an exclusion or limitation of this type on the assumption that such exclusion has a well-established and relatively narrow meaning which excludes only losses which arise in a small minority of cases.  This assumption, although historically supported by decisions of the UK courts, has appeared over the past handful of years to be increasingly less tenable. A recent UK High Court decision in Star Polaris LLC v HHIC-Phil Inc. now casts further doubt on the appropriateness of making this assumption.

Please click here to read the full alert memorandum.

 

Following the international record set in 2015, the M&A market in 2016 has proven to be robust. External influences such as the Brexit referendum in early summer and the U.S. presidential election in November did in fact have an impact, but the M&A market has held its own despite the apprehension on several fronts. In particular, the announced Bayer/Monsanto transaction caught the attention of market participants worldwide. Even though this was the largest foreign investment by a German company, it was just one deal in an eventful year for M&A in Germany. Continue Reading

 

Part 2:  Risks Associated with Transfers of Personal Data and Post-Closing Integration

One aspect of mergers and acquisitions that is receiving growing attention is the relevance of privacy issues[1] under U.S. and European Union (“EU”) laws as well as the laws of a growing number of other jurisdictions.[2]  This two-part blog post discusses the principal M&A-related privacy risks and highlights certain “traps” that are often overlooked.  In Part 1, we discussed risks associated with a target’s pre-closing privacy-related liabilities and considered ways to mitigate these risks through adequate diligence and privacy-related representations in M&A agreements.  In this Part 2, we discuss the risks associated with transferring or disclosing personally-identifiable information (“personal data”) of an M&A target (or a seller) to a purchaser (or prospective purchaser) and those associated with the purchaser’s post-acquisition use of such personal data.

Continue Reading Privacy in M&A Transactions: Navigating the Traps, Part 2