Daniel E. Wolf, P.C. 
5/1/2013 - M&A Update
Kirkland & Ellis LLP
Appraisal, or dissenters’, rights, long an M&A afterthought, have recently attracted more attention from dealmakers as a result of a number of largely unrelated factors.
4/17/2013 - M&A Update
Kirkland & Ellis LLP
A record date, often viewed in the merger context as a mere mechanic to be quickly checked off a “to do” list, creates a frozen list of stockholders as of a specified date who are entitled to receive notice of, and to vote at, a stockholders’ meeting.
3/15/2013 - M&A Update
Kirkland & Ellis LLP
With valuations stabilizing and the M&A market heating up, a rebirth of stock-for-stock deals, after a long period of dominance for all-cash transactions, may be in the offing.
2/14/2013 - M&A Update
Kirkland & Ellis LLP
The “crown jewel” lock-up, a staple of high-stakes dealmaking technology in the 1980s M&A boom, has been showing some signs of life in the contemporary deal landscape, albeit often in creative new forms.
1/14/2013 - M&A Update
Kirkland & Ellis LLP
With litigation now an inevitable feature of the deal landscape, boards evaluating the sale of their company would be well-advised to understand the variety of claims that are being made by plaintiffs in these cases, and in particular those that have gained traction with the courts.
11/12/2012 - M&A Update
Kirkland & Ellis LLP
As companies prepare for the upcoming proxy season, the recent Delaware decision in the Seinfeld case offers a cautionary note for boards as they consider director equity and incentive awards and the terms of the plans under which they are issued.
10/18/2012 - M&A Update
Kirkland & Ellis LLP
The long-held view of deal practitioners has been that, absent differential consideration or a rollover of all or a part of its shares, the size of a significant stockholder’s stake in a target should not affect its (and its affiliated directors’) ability to participate in a sale process or represent a conflict of interest that requires specific procedural protections.
9/6/2012 - M&A Update
Kirkland & Ellis LLP
During the course of negotiations of every public company deal, inevitably the conversation will turn to the amount of the breakup fee payable by a target company to a buyer if the deal is terminated under certain circumstances.
8/15/2012 - PEN
Kirkland & Ellis LLP
Parties to an acquisition agreement often focus significant substantive and drafting attention on the well-known challenges of using an earnout to bridge valuation gaps and a purchase price adjustment to protect balance sheet value. A recent Delaware court decision highlights the need for parties also to address carefully related dispute resolution provisions if an earnout or purchase price adjustment dispute later arises.
Authors:
Daniel E. Wolf P.C.
8/14/2012 - M&A Update
Kirkland & Ellis LLP
We have written before of certain pitfalls that await dealmakers utilizing earnouts and purchase price adjustments. An oft-shared aspect of those two deal provisions was the subject of a recent Delaware decision by Chancellor Strine — the employment of an independent accountant to resolve post-closing disputes between the parties.
Authors:
Daniel E. Wolf P.C.
7/26/2012 - M&A Update
Kirkland & Ellis LLP
Much attention deservedly has been focused on the recent Delaware Chancery and Supreme Court decisions in the high-profile Vulcan/Martin Marietta case where the courts found that a “use restriction” in a confidentiality agreement (i.e., a provision that limits the recipient’s “use” of the disclosing party’s confidential information to a specified purpose) could in certain circumstances preclude the recipient from later commencing a hostile offer for a target company even absent an explicit standstill.
5/17/2012 - M&A Update
Kirkland & Ellis LLP
Delaware courts often take an expansive approach to decision making, offering detailed commentary on the facts and the underlying law in many key M&A cases.
4/26/2012 - M&A Update
Kirkland & Ellis LLP
Whether or not to acquire a minority or “toehold” stake in a public company as a preliminary step towards a future business combination has been the subject of tactical debate for many years.
4/16/2012 - PEN
Kirkland & Ellis LLP
This issue includes the article “SEC Enforcement Eyes Private Equity Fund Managers,” which discusses how the SEC’s Enforcement Division has signaled its intent to increase enforcement actions against private equity fund managers. Also featured is “Custom-Made MAEs – Tailoring Your Risk Allocation,” which discusses that, while the traditional general MAE structure serves a useful purpose, a more tailored approach may be appropriate in certain transactions, particularly when there is a known risk or contingency.
3/8/2012 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
Daniel Wolf, David Feirstein and Joshua Zachariah discuss Material Adverse Effect provisions.
2/28/2012 - M&A Update
Kirkland & Ellis LLP
Regardless of the state of the deal market, Material Adverse Effect, or MAE/MAC, provisions remain among the most hotly contested negotiating points for dealmakers.
2/22/2012 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
Daniel Wolf, Sara Zablotney and David Feirstein authored this article on the general implications of a spin-off on transformational corporate merger activity and certain structures that may allow for a combination of the two.
2/1/2012 - M&A Update
Kirkland & Ellis LLP
Even with the recent slowdown in M&A activity, spinoffs have been among the transactions of choice in the past year. With everyone from economic mainstays like ConocoPhillips and Kraft to high-profile new players like TripAdvisor engaging in separation deals in the latest round of deconsolidation, it is an opportune time for dealmakers to consider the general implications of a spin-off on transformational corporate merger activity and certain structures that may allow for a combination of the two.
12/6/2011 - M&A Update
Kirkland & Ellis LLP
With the M&A market recovery losing steam in the second half of 2011, dealmakers are faced with increased global macro-economic jitters, election year incertitude and tightened financing markets.
10/6/2011 - M&A Update
Kirkland & Ellis LLP
Dealmakers working on public M&A transactions have recently seen increased focus on, and discussion of, what buyers and target boards “can” and “should” do in a sale context.
9/28/2011 - M&A Update
Kirkland & Ellis LLP
In a recent Kirkland M&A Update, we reviewed a Georgia appellate decision upholding a $281 million jury award to a spurned suitor, showing that even careful drafting of “non binding” language in a letter of intent may not be effective in avoiding unanticipated binding obligations if the parties’ conduct is inconsistent with those provisions.
9/7/2011 - M&A Update
Kirkland & Ellis LLP
Perhaps no topic has engendered more conversation among dealmakers in recent months than the allocation between merging parties of the risk of obtaining antitrust approval of a proposed acquisition. With the increase in strategic combinations and the expectation of a more robust regulatory environment under the current administration, many recent merger agreements feature painstakingly negotiated provisions to address these risks.
8/15/2011 - Article
Law360
Jon Ballis and Daniel Wolf co-authored this piece regarding trends in M&A law.
8/2/2011 - PEN
Kirkland & Ellis LLP
In this issue of KirklandPEN brief, partners Daniel E. Wolf and Jon A. Ballis, P.C., discuss other tools dealmakers might use to shorten time required to complete the second step of a two-step takeover, thereby maximizing the time advantage offered by the tender offer structure.
8/1/2011 - M&A Update
Kirkland & Ellis LLP
Tender offers are commonly referred to as “two-step” transactions as a successful tender offer satisfying the minimum condition (i.e., the first step) is followed by a “back-end” merger which squeezes out the inevitable remaining target shareholders.
7/19/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox and Daniel E. Wolf discuss how during the course of early-stage negotiations, exclusivity provisions are often used to protect the time and economic investment being made in the potential transaction by ensuring that the counterparty deals only with the named party for a stated period. In a recent appellate decision in the First Circuit, the court applied a surprisingly narrow reading of the scope of what appeared to be a very broad exclusivity provision, offering a cautionary note to dealmakers as they draft such terms.
6/20/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox and Daniel E. Wolf discuss a recent decision by the highest court in New York that highlights once again the broad finality of a general release given in a transactional context, even in cases where significant fraud is subsequently alleged.
5/2/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox and Daniel E. Wolf reflect on a number of recent trends in deal terms. Some of the trends are fully developed, while others are nascent; either way, dealmakers should be aware of these market velopments as they consider their upcoming deals.
3/23/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox and Daniel E. Wolf discuss the Supreme Court’s recent Matrixx decision, which offers issuers a number of practical steps to both reduce the risk of losing a stock-drop case and increase the likelihood of having such a case dismissed at the early pleading stages.
3/3/2011 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
Daniel Wolf discusses how the use of CVRs will remain the exception rather than the norm.
Authors:
Daniel E. Wolf P.C.
February 1, 2011 - Article
The M&A Lawyer
Daniel Wolf authored this article regarding the implementation of the public M&A version of earnouts, known as Contingent Value/Payment Rights (CVRs).
Authors:
Daniel E. Wolf P.C.
1/27/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partner Daniel Wolf discusses how the use of CVRs will remain the exception rather than the norm, with their primary utility being the facilitation of a focused dialogue around achieving a mutually acceptable present valuation for significant contingencies or binary outcomes.
Authors:
Daniel E. Wolf P.C.
1/6/2011 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss a recent Federal decision in California which, while certainly not the final word on this issue, provides important insight and guidance to companies considering adopting an exclusive jurisdiction bylaw and the potentially limited efficacy of such a provision.
12/2/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss how dealmakers are finding that unique, and often quirky, provisions of state law in certain jurisdictions mean that caution and creativity are required to implement the tender offer structure for targets incorporated in those states.
11/30/2010 - PEN
Kirkland & Ellis LLP
This issue includes the article “Harsh Excise Tax Imposed on Health Insurance Plans Favoring Executives over Rank and File,” which discusses how the recently enacted health reform legislation imposes harsh new excise taxes on any employer whose insured medical plan treats one or more executives better than rank-and-file employees. Also featured is “Test-Driving a Hybrid Go-Shop,” which reports that an interesting hybrid of the “go-shop” and “no-shop” techniques has emerged in some recent strategic deals that may be useful for private equity sponsored transactions.
11/28/2010 - Article
The Harvard Law Forum on Corporate Governance and Financial Regulation
David Fox and Daniel Wolf authored this article regarding trends in M&A Law.
10/28/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss how a number of recent high-profile strategic deals have featured a new form of hybrid “go-shop”, combining the non-solicitation features of a “noshop” with the bifurcated termination fee of a “go-shop.”
10/11/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss how recent Delaware cases suggest that courts may apply a different yardstick in evaluating a target board’s satisfaction of its Revlon duties in a change of control transaction depending on whether the acquirer is a financial buyer or a strategic player.
9/9/2010 - Governance Watch
Kirkland & Ellis LLP
In this issue of Kirkland Governance Watch, the authors discuss the SEC recent adoption of new "proxy access" rules to facilitate the rights of shareholders to nominate candidates for election to a public company's board of directors. Subject to various limitations, the new rules require public companies to include nominees of certain significant and long-term shareholders in their proxy materials, thus providing these shareholders with an alternative to the more expensive and complex process of preparing and distributing their own proxy materials.
8/30/2010 - PEN
Kirkland & Ellis LLP
This issue includes the article “RMB Funds – An Emerging Opportunity,” which reports how recent favorable regulatory developments may enhance opportunities for non-Chinese sponsors seeking to enter the China market by raising RMB-denominated funds. Also featured is “Letters of Intent – Say What You Mean and Mean What You Say,” which discusses how the recent decision by the Georgia Court of Appeals upholding a jury verdict awarding millions to a spurned prospective buyer shows that even careful drafting of “non-binding” language in a letter of intent may not be effective in avoiding unanticipated binding obligations.
8/10/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss how even careful drafting of "non-binding" language in a letter of intent may not be effective in avoiding unanticipated binding obligations if the parties' conduct, including in respect of the letter of intent itself, is inconsistent with those provisions.
7/22/2010 - Governance Watch
Kirkland & Ellis LLP
In this issue of Kirkland Governance Watch, partners Mark D. Director, Robert M. Hayward, P.C., Theodore A. Peto, Scott D. Price and Daniel E. Wolf discuss the Dodd-Frank Wall Street Reform and Consumer Protection Act, which was signed into law on July 21, 2010. The Dodd-Frank Act is predominantly focused on the regulation and oversight of financial institutions. However, certain corporate governance provisions within the legislation will have a broad impact on most public companies (including non-financial institutions). This issue includes a chart that summarizes the key corporate governance requirements of the act.
7/15/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox, R. Scott Falk, P.C., and Daniel E. Wolf discuss why recent court proceedings and settlements relating to top-up option claims offer dealmakers a few practical pointers to reduce litigation risk in tender offers.
7/1/2010 - Governance Watch
Kirkland & Ellis LLP
In this issue of Kirkland Governance Watch, partners Mark D. Director, Robert M. Hayward, P.C., Theodore A. Peto, Scott D. Price and Daniel E. Wolf discuss the Dodd-Frank Wall Street Reform and Consumer Protection Act, which was resubmitted to conference representatives of the House and Senate this week and is anticipated to be signed into law in early July. This issue includes a chart that summarizes the key corporate governance requirements of the act.
6/15/2010 - M&A Update
Kirkland & Ellis LLP
A recent Delaware Chancery court decision shows that, absent cautious drafting, parties may be releasing more than anticipated when executing a customary general release. In this issue of M&A Update, partners David Fox and Daniel Wolf discuss this decision and its implications in the transactional context.
6/12/2010 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
David Fox and Daniel Wolf discuss increased sensitivity around issues of conflicts of interest for financial advisors.
6/1/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox, Thomas Christopher and Daniel Wolf discuss why a recent Delaware Chancery Court decision has raised substantial doubts as to the applicable standard of judicial review for freeze-out transactions where a "controlling" parent seeks to acquire the shares held by the public minority. As a result of the decision, parties structuring these transactions will face significant uncertainty as to the standard of judicial review and the likely path and outcome of deal-related litigation until the Delaware Supreme Court resolves this controversial issue.
5/17/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss why a recent Delaware Chancery bench decision from VC Laster denying a motion for a preliminary injunction to block the merger of Zenith National with Fairfax Holdings suggests increased sensitivity around issues of conflicts of interest for financial advisors.
4/27/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf and associate Joshua Zachariah discuss purchase price adjustments, and explain why, while their appeal is indisputable, they are often subject to post-closing disputes. One of the drivers of these disputes is inattention to the details of drafting the adjustment provisions, often exacerbated by the fact that these clauses straddle the realm controlled by the legal practitioners and that managed by the financial and accounting experts.
3/22/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partner Daniel E. Wolf and associate Joshua M. Zachariah discuss why the recent uptick in implementation of poison pills means boards and their advisers should pay close attention to the details and mechanics of the pill, which may prove decisive in whether the outcome will match the board's expectations.
3/5/2010 - Article
Practical Law Company
Partners David Fox and Daniel Wolf discuss new trends in deal protection provisions.
2/16/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss why recent takeover battles are bringing into question the continued vitality of the "just say no" defense, which allows boards of directors of target companies to combine refusal to negotiate and an unwillingness to waive structural defenses (such as a poison pill or Section 203 of the Delaware corporate code) to frustrate advances from unwanted suitors.
2/3/2010 - PEN
Kirkland & Ellis LLP
This issue includes the article “Earnouts — A Siren Song?” which outlines a few recent cases that highlight the sobering reality that earnouts, despite offering an appealing alternative to the typical “split the difference” compromise, are frequently recipes for future disagreements regardless of the time and care expended on their creation.
1/29/2010 - Article
Investment Dealer's Digest
David Fox and Daniel Wolf co-authored this article regarding trends in M&A law.
1/26/2010 - Article
Deal Lawyers
David Fox and Daniel Wolf co-authored this article regarding trends in M&A law.
1/20/2010 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss why earnouts, despite offering an appealing alternative to the typical "split the difference" compromise, are frequently mere recipes for future disagreements regardless of the time and care expended on their creation.
12/31/2009 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland's M&A Update, partners David Fox, Kirk A. Radke and Daniel Wolf discuss the recent Delaware courts decision that includes important information for dealmakers in two key areas that are often in play in competitive bidding situations.
12/30/2009 - Article
Investment Dealer's Digest
David Fox, Kirk Radke and Daniel Wolf co-authored this article regarding a recent decision in the Delaware courts that includes important information for dealmakers in two key areas that are often in play in competitive bidding situations.
12/2/2009 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland's M&A Update, partner Daniel Wolf discusses how a recent Delaware bench decision on a motion for a temporary restraining order offers a timely reminder of potential pitfalls for parties entering into letters of intent or term sheets with the expectation that they merely represent an unenforceable "agreement to agree."
Authors:
Daniel E. Wolf P.C.
November 2009 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox and Daniel Wolf discuss new trends in deal protection provisions.
11/2/2009 - Governance Watch
Kirkland & Ellis LLP
In this issue of Kirkland Governance Watch, partners Daniel Wolf and Robert M. Hayward, P.C., and associate Raymond F. Bogenrief discuss how recent revisions to the policies of SEC staff and RiskMetrics may create pitfalls in the 2010 proxy season.
10/28/2009 - M&A Update
Kirkland & Ellis LLP
In this issue, partner Daniel Wolf focuses on the importance of wording in engagement letters for advisory services, and conduct during the time advice is being offered, in preserving advisory expectations and mitigating adviser liability.
Authors:
Daniel E. Wolf P.C.
10/28/2009 - PEN
Kirkland & Ellis LLP
This issue includes the article “Some Tender Offer Quirks,” which states that, in considering a tender offer, sponsors should be aware of a number of quirks that have come to light in recent tender offer transactions that may impact or offset its advantages. Also featured is “ILPA —Private Equity Principles," which discusses the ILPA’s recently published “Private Equity Principles,” which outlines the trade group’s “wish list” for private equity fund terms.
10/23/2009 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland M&A Update, partners David Fox, Daniel Wolf and Jay Ptashek discuss how the specific terms, words and structure of "change of control" and "anti-assignment" clauses in company agreements and the M&A documents that implicate them can go a long way toward facilitating the ultimate success of a future deal.
10/9/2009 - M&A Update
Kirkland & Ellis LLP
In this issue of M&A Update, partners David Fox, Daniel Wolf and Susan J. Zachman discuss a number of quirks that have come to light in recent tender offer transactions and explain why practitioners should be aware of them.
10/2/2009 - M&A Update
Kirkland & Ellis LLP
In this issue of Kirkland's M&A Update, partners David Fox and Daniel Wolf discuss how perceived departures from traditional deal structures are largely a reflection of a complex equation of a dozen or so contractual variables that interact with overall deal dynamics, including company-specific and secular market conditions, to produce a deal-specific outcome in the relevant post-crash transactions.
8/14/2009 - Governance Watch
Kirkland & Ellis LLP
In the inaugural issue of Kirkland Governance Watch, partners Robert M. Hayward, P.C., Carol Anne Huff, Theodore A. Peto and Daniel E. Wolf, and associate Sarah B. Gabriel summarize significant corporate governance developments in order for senior management and boards of directors to remain informed and begin to consider key planning implications and initiatives.
5/29/2009 - M&A Update
Kirkland & Ellis LLP
In this M&A Update, partner Daniel Wolf discusses the SEC's May 20 vote to propose a comprehensive set of rules governing proxy access. Although the full text of the proposed rules has not yet been made public, with the change of administration and SEC leadership in Washington, D.C., it is likely that the SEC will enact rules that allow shareholders meeting certain minimum ownership and other criteria to nominate directors for election directly in the company’s proxy statement, rather than being required to use the traditional proxy-contest method of sending their own proxy statements.
Authors:
Daniel E. Wolf P.C.
