Amy R. Shapiro

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I. Executive Summary

This memo examines the key similarities and distinctions between US “SunGard” conditionality practices and European “Certain Funds” requirements for acquisition financings, providing practical guidance for structuring competitive bids and managing closing processes in cross-border transactions. As cross-border M&A and private equity activity between the US and UK/European markets continues to grow, it is increasingly important for buyers and sellers alike to understand these fundamental differences and how successful deal execution depends on financing conditionality.Continue Reading Cross-Border Acquisition Financing – Navigating “SunGard” Conditionality and Certain Funds Requirements

In Pontiac Gen. Employees Retirement Syst. v. Ballantine (Healthways) [1], the plaintiffs  alleged that Healthways’ directors had breached their fiduciary duties by entering into a credit agreement with a “dead-hand proxy put” – that is, a provision that provides for an event of default under the credit agreement if the majority of directors on the board are replaced without the consent of the directors in office on the date of the credit agreement (or the consent of successors approved by such directors), without any room for existing directors to approve new directors if they were nominated in connection with a proxy contest. The complaint also alleged that, as lender, SunTrust should be liable for aiding and abetting such a breach of fiduciary duty.  
Continue Reading Recent Developments on “Proxy Puts”