Study Highlights Recent Trends in M&A Deal Terms


The Mergers & Acquisitions Committee of the American Bar Association’s Business Law Section recently released the 2009 Strategic Buyer/Public Target M&A Deal Points Study. I am the Co-Chair of the Committee’s M&A Market Trends Subcommittee and the Project 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 2008. It also compares the data from the 2008 deals to the data from the Subcommittee’s prior studies of public company acquisitions, which cover deals announced in 2005, 2006 and 2007.

The 2009 Study also tested new deal points in the 2008 deals, including operating covenant provisions, reverse termination fees in strategic deals, and provisions providing the target the express right to pursue damages on behalf of the target’s stockholders (so called “ConEd” language). Interestingly, only 17% of the deals in the data set included ConEd language.

In addition to myself, Keith Flaum, Vice Chair of the Mergers & Acquisitions Committee and former Chair of the M&A Market Trends Subcommittee, and Rick Climan, former Chair of the Mergers & Acquisitions Committee, acted as Special Advisors for the 2009 Study. My Co-Chair of the M&A Market Trends Subcommittee, Jessica Pearlman, and more than 20 M&A lawyers from major firms across North America, assisted in the preparation of the Study. Their names are listed in the Study.

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