Archives: IPOs and M&A

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In re Trados: What happens when common gets nothing?

This morning, Delaware Chancery Court Vice Chancellor Laster issued his highly anticipated, post-trial decision in In re Trados Incorporated Shareholder Litigation, C.A. No. 1512-VC (August 16, 2013), where the directors who either held preferred stock or were nominees of private equity firms that held preferred stock, sold the company for an amount that resulted in the common holders receiving zero proceeds.…

Recent Venture Capital Trends: CB Insights Q2 2013 Data

CB Insights has published summary data regarding recent venture capital trends, together with a full report available to paid subscribers.  In terms of investments by VCs, the report indicates that US$7.0B was invested in 807 deals in the second quarter of 2013, representing a small increase in dollars invested (versus US$6.9B in first quarter) but a decrease in the number of deals of approximately 4%. …

SEC Issues Rules Lifting Ban on General Solicitation in Unregistered Fundraising

Ban on General Solicitation Lifted with Respect to Accredited Investors

Today, the Securities and Exchange Commission (SEC) adopted new rules to lift the ban on general solicitation of funds or general advertising for certain private offerings of securities.  Once the rules become effective (60 days after publication in the Federal Register), provided that certain requirements are met, startups, fund managers and other companies will be able to utilize general advertising to offer to sell stock to “accredited investors” as defined in Rule 501 of Regulation D of the Securities Act of 1933 (typically wealthy individuals with liquid net worth in excess of $1 million or investment funds; see our discussion of the recently revised accredited investor standards here as well as information on the SEC’s site http://www.sec.gov/answers/accred.htm). …

“Venture Capital Fund” Flowchart for Exemption Under the Investment Advisers Act of 1940

This article is appearing simultaneously on The Venture Alley and on Startup Law Blog

The below flowchart may be helpful to you in answering the question whether you qualify for the exemption for “venture capital funds” under Section 203(l) of the Investment Adviser’s Act of 1940 ( the “Advisers Act”), pursuant to the final rules promulgated by the SEC.…

Comment Letter Response to Washington State’s Plans to Regulate More Fund Managers

As readers of this blog know, Washington State is proposing new rules that will require more fund managers to become registered investment advisers.  These rules were originally proposed in the second half of last year and, in response to preliminary comments, the Securities Division of the Washington State Department of Financial Institutions (DFI) proposed new rules for comment by May 21, 2013. …

New Delaware Chancery Opinion Affecting License Rights in Mergers

On February 22, 2013, in its Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH decision, the Delaware Court of Chancery held that a reverse triangular merger is not an assignment by operation of law, meaning that licensor consent is not required for the surviving entity to retain the target company’s rights, benefits and obligations under an existing technology license.…

2012 US equity and debt capital markets activity in review

pic-trent.jpgCONTRIBUTED BY
Trent Dykes
trent.dykes@dlapiper.com

Compliments of our colleague Christopher Paci, the Chair of DLA Piper’s US capital markets practice, below is a review of 2012 US equity and debt capital markets activity.

Equity.  US equity and equity-related proceeds totaled $244.5B from 795 deals, a 32.7% increase compared to 2011. IPOs accounted for $40.9B, or 16% of the total, in 2012, up 18% from 2011 (excluding Facebook, down 27%).…

Assigning Contracts in the Context of M&A Transactions

CONTRIBUTED BY

Criddle.jpg
Kevin Criddle
kevin.criddle@dlapiper.com 

 

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Anthony Kappus
anthony.kappus@dlapiper.com

One of the key considerations in structuring merger and acquisition (M&A) transactions is determining which contracts of the target company, if any, will remain in effect for the acquiror following closing.  This post will briefly outline: (1) the general rules of contract assignment; (2) the effect of anti-assignment clauses and other exceptions to the general rule of assignability; and (3) the effect of four common M&A structures on contract assignment.…

When Public Companies Combine – Managing Leadership Succession

Batts, Ed_Headshot.jpgCONTRIBUTED BY
Ed Batts
ed.batts@dlapiper.com

Managing leadership succession in the misnomered “merger of equals” or the more common combination of two large public companies of different sizes can often be tricky. To the extent that both the buyer and the target agree that one or more members of a target’s management team are to transition to management positions in the combined company, merger contracts often specify who shall become what.…

Senior SEC Official Comments on Key Public Reporting Disclosure Issues

CONTRIBUTED BY
Ed Batts

At a recent American Bar Association meeting, a senior Securities and Exchange Commission official reviewed various aspects of interest for public company reporting and compliance purposes. As is customary, such Staff comments were on a non-attribution basis and were represented to be personal views only and not those of the SEC as a whole.…

Reviewing the M&A Nondisclosure Agreement

Wang, Eric.jpgCONTRIBUTED BY
Eric Wang
eric.wang@dlapiper.com

A nondisclosure agreement, often referred to as an NDA or a confidentiality agreement, is typically the first agreement to be entered into in a mergers and acquisitions transaction. The agreement is designed to protect the confidentiality of information exchanged in connection with the consideration and negotiation of the transaction and information exchanged in the course of a party’s due diligence review of the other.…

M&A due diligence: The review and results (part 5)

This post is part five of our five part series exploring various aspects of due diligence in the context of a merger and acquisition (M&A) transaction. Our prior posts discussed M&A due diligence generally and its objectives, described the due diligence process, outlined considerations when assembling your due diligence team of experts and the due diligence request list, and explained how to respond to a due diligence request list.…

Turning an NDA into a standstill?

Last week, the Delaware Court of Chancery issued an interesting opinion where it enjoined a party from prosecuting a proxy contest and proceeding with a hostile bid for its industry competitor as a remedy for breach of the parties’ NDA. This pretty extreme remedy was issued even though the parties did not enter into a standstill agreement.…

New Nasdaq $2 / $3 Initial Price Listing Standards

Andrew_Headshot.jpgCONTRIBUTED BY
Andrew Ledbetter
andrew.ledbetter@dlapiper.com

As a quick follow up on this topic from a few months ago (prior post can be read here), the SEC has approved alternatives to Nasdaq’s historical $4 minimum bid price listing standard.  Under the new alternative listing standards, a security may qualify for listing on the Nasdaq Capital Market if: 

$3/share price — for at least five consecutive business days prior to approval, the security has a minimum closing price of at least $3 per share and the issuer has either:

  • Equity Standard:  (A) stockholders’ equity of at least $5M; (B) market value of publicly held shares of at least $15M; and (C) a two year operating history; or
  • Net Income Standard:  (A) net income from continuing operations of $750,000 in the most recently completed fiscal year or in two of the three most recently completed fiscal years; (B) stockholders’ equity of at least $4M; and (C) market value of publicly held shares of at least $5 million; or

$2/share price — for at least five consecutive business days prior to approval, the security has a minimum closing price of at least $2 per share and the issuer has (A) market value of listed securities of at least $50M; (B) stockholders’ equity of at least $4M; and (C) market value of publicly held shares of at least $15M.…

Dual-class voting; A trend toward eliminating shareholder rights?

John Melloy’s article entitled “The Dictators of Silicon Valley: Facebook, Google Stripping Shareholder of Power” highlights an interesting trend among tech companies that have gone public in the past several years – implementing dual-class voting structures. The general idea behind these dual-class voting structures is to keep control in the hands of the individuals (usually the founders) who supposedly know what is best for the company and to shield a company from potential public company shareholder activism and hostile takeovers.…

Like? Comment? What the SEC might think of Facebook’s IPO

A_Ledbetter_LR.jpgCONTRIBUTED BY
Andrew Ledbetter
andrew.ledbetter@dlapiper.com

The Facebook IPO is a pretty big deal generally. Whether Facebook would go public stirred media frenzy and Congressional testimony in the past year. Facebook’s initial registration statement indicated it would be the largest tech company IPO ever (the fee table on the original filing showed a $5 billion offering – the filing fee alone was $573k).  And the company’s social importance is undeniable.…

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