The Law of Mergers And Acquisitions

by Oesterle, Dale A.

Edition: 3rd

ISBN13: 9780314153913

ISBN10: 0314153918

Format: Hardcover

Pub. Date: 2005-05-27

Publisher(s): West Academic

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Summary

Covers tax, accounting, environmental, products liability, pension, antitrust, national security, bankruptcy, and labor law. Builds on the basic four-credit corporations class, a modern corporate planning course. Integrates traditionally distinct classroom subjects in the context of discrete transactions. The materials are easy to edit. Each topical unit contains statutes, regulations, and case law that affect the structure and timing of acquisitions and reorganizations. Includes questions and problems to aid students in walking through the law's basic distinctions. Textual notes and edited articles identify and question the empirical and political assumptions implicit in the standards.

Preface

Acknowledgments

Summary of Contents

vii

Table of Cases

xxv

An Introduction to Acquisitions

(29)

Introduction

(1)

M & A Terminology

(7)

Customary Informal Understanding of Basic Terms

(3)

The Varying Typologies of M & A Professionals

(4)

Introduction to M & A Negotiations

(16)

Note: An M & A Deal Time Table

(4)

Valuation

(3)

Negotiating Tactics

(1)

David A. Lax & James K. Sebenius, The Manager as Negotiator

(2)

Pricing Issues in Deferred Closing Transactions

(1)

Note: Price Terms in Stock Swaps

(3)

Note: Post-Closing Adjustments

(3)

Do Acquisitions Create Value

(5)

Questions

(2)

The Mechanics of an Acquisition

(169)

State Corporate Codes

(98)

Introduction

(2)

The Basic Provisions of State Corporate Codes Relevant to Acquisitions

(3)

The Three Basic Forms: The Stock Swap Statutory Merger, the Cash-for-Assets Acquisition and the Cash-for-Stock Acquisition

(1)

A Plain Vanilla (or Stock Swap) Staturtory Merger: Delaware

(4)

Cash-for-Assets Acquisition

(2)

Note: ``Substantially All''

(1)

Hollinger Inc. v. Hollinger International, Inc.

(6)

Cash-for-Stock Acquisition: Delaware

(1)

Corporate Codes in Other States

(2)

Shidler v. All American Life and Financial Corp.

(5)

The Extraterritorial Effect of State Corporate Code Provisions on Shareholder Voting

(1)

Transaction Planning Alternatives

(1)

Stock-for-Asset Acquisitions

(1)

Heilbrunn v. Sun Chemical Corporation

(5)

Note: Reverse Asset Sale

(1)

Hariton v. Arco Electronics

(1)

Stock-for Stock Acquisitions

(1)

Irving Bank Corp v. Bank of New York Co., Inc.

(2)

Cash-Out Mergers

(2)

Rauch v. RCA Corporation

(4)

Question

(1)

Triangular Acquisitions

(2)

Equity Group Holdings v. DMG Inc.

(4)

Two-Stage Stock Acquisitions

(1)

Partnership and Long-Term Supply Contracts

(1)

Pratt v. Ballman-Cummings Furniture Co.

(1)

Good v. Lackawanna Leather Co.

(1)

Single-Firm Reorganizations, Reincorporations and Conversions

(2)

Federal United Corporation v. Havender

(3)

Elliot v. Avatex Corporation

(4)

Note: Conversions: Changes in Entity Form

(1)

VGS, Inc. v. Castiel

(3)

Question

(1)

The Dissenting Shareholders' Appraisal Remedy

(1)

The Mechanics of the Appraisal Remedy

(4)

ALI-ABA Rev. Model Business Corp. Act, § 13.31(a) (1999 rev.)

102

(1)

Barry M. Wertheimer, The Shareholders' Appraisal Remedy and How Courts Determine Fair Value

102

(2)

Note: Appraisals in Merger Involving a Controlling Shareholder

104

(1)

Case Law on Fair Value in Appraisal Proceedings

105

(1)

Cavalier Oil Corp. v. Harnett

105

(1)

Questions

106

(1)

M.G. Bancorporation, Inc. v. Le Beau

106

(12)

Weinberger v. UOP, Inc.

118

(5)

Cede & Co. v. Technicolor, Inc. (Cede III)

123

(4)

Questions

127

(1)

Note: Contractual Modification of the Appraisal Rights of Preferred Stock

128

(1)

Listing Requirements on Our National Stock Exchanges

128

(28)

Introduction to Stock Exchange Listing Requirements

128

(4)

The New York Stock Exchange Listing Requirements on Shareholder Voting in Acquisitions

132

(1)

New York Stock Exchange Listed Company Manual

132

(3)

The Policy Debate: Is the California Approach Better Than Delaware's, or Vice Versa?

135

(4)

The Limits of Legislation

139

(5)

Should Rules for Shareholder Voting on Acquisitions Be Optional

144

(2)

Frank Easterbrook & Daniel Fischel, The Corporate Contract

146

(2)

Louis Kornhauser, The Nexus of Contracts Approach to Corporations: A Comment on Easterbrook and Fischel

148

(3)

The Rational Investor's Choice of Voting and Appraisal Systems

151

(2)

Mandatory Rules in Legislatins as a Pre-Commitment Device?

153

(1)

Frank Easterbrook & Daniel Fischel, The Corporate Contract

153

(3)

Federal Securities Law Affecting the Mechanics of Acquisitions

156

(34)

Federal Law on Shareholder Voting In Acquisitions: Proxy Regulations

156

(5)

Federal Law on Stock Acquisitions: The Regulation of Tender Offers

161

(1)

An Introduction to the Williams Act

161

(2)

Katt v. Titan Acquisitions

163

(1)

Questions

164

(1)

Note: ``Mini-Tender Offers''

164

(3)

Note: Tender Offer Rules and the Internet

167

(1)

The Policy Debate on the Williams Act

167

(2)

Question

169

(1)

Dale A. Oesterle, The Rise and Fall of Street Sweep Takeovers

169

(2)

What Is a ``Tender Offer''?

171

(4)

Issuer Tender Offers and Going-Private Transactions

175

(1)

Federal Law Affecting Stock Swaps: Regulation of Public Offerings

176

(1)

Effect of the 1933 Act on Exchange Tender Offers

177

(3)

Effect of the 1933 Act on Statutory Mergers and Asset Acquisitions

180

(1)

Securities and Exchange Commission Rule 145: Reclassification of Securities, Mergers, Consolidations and Acquisitions of Assets

181

(4)

Note: Going Public With a ``Reverse Merger''

185

(1)

The Effect of the 1933 Act on Recapitalizations

186

(1)

SEC Division of Corp. Finance No-Action Letter, Time, Inc.

186

(2)

Federal Law on Stock Purchases Outside the Acquisition During an Acquisition by Constituent Parties

188

(2)

Question

190

(1)

Purchases of Financially Troubled Companies: The Requirements of Federal Bankruptcy Law

190

(9)

In re Lionel Corp.

193

(4)

Stephens Indus. v. McClung

197

(2)

Successorship to Assets and Liabilities: The Effect of an Acquisition on Outstanding Patent Licenses, Leases, Collective Bargaining Agreements, Pensions, and Contingent Product, Environmental, and Civil Rights Claims

199

(105)

Acquisition Negotiation as a Multi-Issue Bargain

199

(7)

Introduction to Multi-Issue Bargaining

199

(2)

David A. Lax and James Sebenius, The Manager as Negotiator

201

(1)

Question

202

(1)

Externalities and Other Forms of Opportunistic Behavior in Acquisitions

202

(4)

Question

206

(1)

Transfer of Assets, Licenses and Leaseholds in Acquisitions

206

(20)

Statutory Mergers: Vests in Survivor

206

(1)

PG Industries, Inc. v. Guardian Industries Corp.

206

(5)

Questions

211

(1)

Note: Federal Pre-emption and State ``Effect of Merger'' Statutes

212

(1)

Note: Purchasing High-Tech Companies

213

(2)

Stock Acqusition: No Transfer

215

(1)

Branmar Theatre Co. v. Branma, Inc.

215

(2)

Question

217

(1)

Asset Acquisitions: Transfer and Tradeoffs

217

(1)

Chemetall GMBH, v. ZR Energy, Inc.

218

(2)

Question

220

(1)

Sharon Steel Corporation v. Chase Manhattan Bank

220

(6)

Successor Liability

226

(33)

Asset Acquisitions and State Law on Successor Liability

226

(1)

Cargo Partner AG v. Albatrans, Inc.

227

(2)

Question

229

(1)

Ruiz v. Blentech Corporation

229

(4)

Domine v. Fulton Iron Works

233

(1)

Question

234

(1)

Successor Liability and Federal Statutes

234

(1)

Labor Law

234

(1)

Golden State Bottling Co. v. NLRB

234

(3)

Fall River Dyeing & Finishing Corp. v. NLRB

237

(4)

Note: ``Duty to Arbitrate'' Distinguished from ``Duty to Bargain''

241

(2)

Note: Contract Clauses Purporting to ``Bind Successors''

243

(1)

Canteen Corporation v. NLRB

244

(2)

Question

246

(1)

Environmental Liabilities

247

(1)

New York v. National Services Indus., Inc.

247

(6)

Note: Successor Liability Under CERCLA: Efficiency or Fairness?

253

(4)

How Can a Purchaser in an Asset Acquisition Minimize Its Involuntary Exposure to Seller's Liabilities?

257

(2)

Liability Avoidance Strategies and Countervailing Legal Rules

259

(45)

Asset Sale Followed by a Distribution of the Proceeds

259

(3)

In re RegO Company

262

(12)

In re PNP Holdings Corp.

274

(5)

Purchasing Assets From a Bankrupt Company

279

(2)

Ninth Avenue Remedial Group v. Allis-Chalmers Corp.

281

(7)

Questions

288

(1)

Chicago Truck Drivers, Helpers and Warehouse Workers Union Pension Fund v. Tasemkin

288

(1)

Question

289

(1)

Note: ``Interests'' Versus ``Claims'' Under § 363(f): When is ``Free and Clear'' not Free or Clear?

289

(1)

Spin-Offs, Split-Offs, Triangulars and Other Sleight of Hand Using Subsidiaries

290

(1)

Schmoll v. ACandS, Inc.

290

(6)

Celotex Corp. v. Hillsborough Holdings Corp.

296

(1)

Note: Section 524 (g) Proceedings for Asbestos Claims

297

(1)

United States v. Bestfoods

298

(3)

The Debtor's Residual Strategy: Bleed and Default

301

(3)

Acquisition Documents

304

(96)

Preliminary Documents

305

(21)

Confidentiality Agreements

305

(2)

Letters of Intent

307

(1)

AIG Acquisition Corp. v. Alaska Indus. Hardware, Inc.

308

(4)

Questions

312

(3)

Texaco, Inc. v. Pennzoil Co.

315

(11)

The Acquisition Agreement and Supporting Documents

326

(34)

The Basic Agreement

326

(2)

Representation

328

(1)

Note: Representations and Warranties Insurance

329

(1)

Covenants and Conditions

330

(2)

Indemnification

332

(2)

Negotiating the Documents: Form Practice

334

(3)

Stephen I. Glover, Indemnification Provisions in Acquisition Agreements: Is There Such a Thing as Standard Practice?

337

(3)

Supplemental Documents

340

(3)

O'Tool v. Genmar Holdings, Inc.

343

(7)

Richmond v. Peters

350

(2)

Questions

352

(1)

Acquisition Review Documents

352

(4)

Contingent Terms in, Amendments to and Abandonment of Acquisition Agreements

356

(2)

Deal Protection Covenants

358

(2)

Closing Documents

360

(9)

Marcus v. Frome

364

(5)

Litigation Among Parties to Acquisition Contracts

369

(24)

Buyer Purchases a ``Pig in a Poke''

369

(1)

Buyer Claims Breach of Contract

369

(1)

Medcom Holding Co. v. Baxter Travenol Labs., Inc.

369

(3)

Buyer Claims Violation of Rule 10b-5

372

(1)

AES Corp. v. The Dow Chemical Co.

372

(7)

Question

379

(1)

The Buyer Refuses to Close

379

(1)

In re IBP, Inc. Shareholders Litigation -- IBP, Inc. v. Tyson Foods, Inc.

379

(9)

Cities Service Co. v. Gulf Oil Corp.

388

(2)

Note: Terrorism and MAC Clauses

390

(1)

Third-Party Beneficiary Claims

390

(1)

Merzin v. Provident Financial Group Inc.

390

(2)

Prouty v. Gores Technology Group

392

(1)

Mergers in Regulated Industries

393

(7)

Allegheny Energy, Inc. v. DQE, Inc.

394

(3)

Subsequent History of the Allegheny Case

397

(1)

Note: Regulatory Extortion

397

(3)

The Legal Duties of Boards of Directors, Senior Executives and Controlling Shareholders

400

(277)

A Board's Duties in Negotiated Acquisitions

400

(111)

The Duty of Care

401

(1)

Smith v. Van Gorkom

401

(10)

Parnes v. Bally Entertainment Corp.

411

(1)

Note: The Effect of Van Gorkom on Stock Prices, Fairness Opinions and D & O Insurance

411

(1)

Cede & Co. v. Technicolor, Inc. (Cede II)

412

(2)

Note: The Fall-Back Test When the Business Judgment Rule Fails: Negligence or Entire Fairness?

414

(1)

Cinerama, Inc. v. Technicolor, Inc. (Cede III)

415

(12)

Questions

427

(1)

The Purchasing Board's Decision to Acquire a Company

427

(1)

Ash v. McCall

427

(9)

Note: The ``Shop `Til You Drop'' '90s

436

(3)

Hewlett v. Hewlett-Packard Co.

439

(9)

Note: Subsequent History in the Hewlett-Packard Case

448

(1)

Duty of Loyalty: Conflict of Interest Transactions

449

(1)

General Principles: When are Directors Disinterested and Independent?

450

(1)

Orman v. Cullman

450

(11)

Note: Sarbanes-Oxley and Lasting Requirements on the Definition of Independent

461

(1)

Squeeze-Out Mergers: Acquisitions of a Minority Interest in a Controlled Subsidiary

462

(1)

Weinberg v. UOP, Inc.

462

(3)

Rosenblatt v. Getty Oil Co.

465

(1)

Glassman v. Unocal Exploration

466

(1)

Note: Cleansing Processes Effect on the Standard of Review

467

(1)

William T. Allen, Independent Directors in MBO Transactions: Are They Fact or Fantasy?

468

(1)

Questions

469

(1)

Note: Compensation of Special Negotiating Committees

469

(1)

Tender Offers for Minority Shares by Controlling Shareholders: The Coercion Test

470

(1)

In re Pure Resources, Inc., Shareholder Litigation

471

(4)

Note: Squeeze-Outs and Tender Offers Compared

475

(1)

Note: Delaware Case on the Obligations of the Target Board in a Tender Offer

476

(2)

Minority Stock Repurchases in Anticipation of an Acquisition

478

(1)

Lawton v. Nyman

478

(6)

Recapitalization

484

(1)

Levco Alternative fund v. The Reader's Digest Assoc.

484

(3)

Legal Duties of Controlling Shareholders in Negotiated Acquisitions

487

(1)

No General Obligation to Share the Proceed from the Sale of a Controlling Block of Stock

487

(1)

Zetlin v. Hanson Holdings, Inc.

487

(1)

Note: Target Shareholders Buying Voting Power in the Bidder

488

(1)

Question

488

(1)

Note: The Empirical Evidence of the Effect of Block Trades on Minority Shareholders

489

(1)

McMullin v. Beran

489

(3)

Question

492

(1)

In re Digex, Inc. Shareholder Litigation

492

(1)

Question

493

(1)

Hollinger International, Inc. v. Conrad Black

494

(2)

The Duty Not to Sell to a ``Looter''

496

(1)

Debaun v. First Western Bank and Trust Co.

496

(5)

Harris v. Carter

501

(1)

The Duty Not to Sell to an Office

502

(1)

Essex Universe Corp. v. Yates

502

(4)

The Duty Not to Usurp Corporate Opportunities

506

(1)

Thorpe v. Cerbco, Inc.

506

(5)

Note: Allegations of Waste

511

(1)

A Target Board's Decision to Block a Takeover

511

(130)

Introduction to Firm-Specific Takeover Defenses

511

(1)

A Classification of the Defenses

511

(8)

Note: Rule 14a-8 Shareholder Resolutions on Anti-takeover Defenses

519

(3)

Defenses Void Ab Initio Under State Law or in Violation of Exchange Listing Requirements

522

(1)

Quickturn Design Systems, Inc. v. Shapiro

522

(1)

Questions

523

(1)

Note: Stock Exchange Restrictions on Voting Rights Plans

524

(2)

Sec Exchange Act Rel. Nos. 25891 & 25891A (July 7 & 13, 1988)

526

(2)

Empirical Data on the Use and Effect of the Takeover Defenses

528

(4)

Note: High-Tech Company IPOs and Anti-takeover Defenses

532

(1)

Fiduciary Duty and a Board's Decisions to Block Takeovers

533

(1)

Introduction to the Enhanced Scrutiny Test (Unocal Test)

533

(1)

Unitrin, Inc. v. American General Corp.

534

(9)

Question

543

(1)

Chesapeake Corp. v. Shore

544

(5)

Paramount Communications, Inc. v. Time, Inc.

549

(1)

Shamrock Holdings, Inc. v. Polaroid Corp.

549

(2)

Ohio Gen. Corp. Law § 1701.59

551

(1)

Question

551

(1)

Note: Empirical Evidence on Blocked Takeover

551

(2)

Dale Oesterle, The Negotiation Model of Tender Offer Defenses and The Delaware Supreme Court

553

(5)

Note: Unocal and Assertions of the Attorney-Client or Business Strategy Privileges

558

(1)

Blocking One Bidder to Favor Another: The Revlon Zone

558

(1)

Revlon, Inc. v. Mac Andrews& Forbes Holdings, Inc.

558

(8)

Willard v. Moneta Building Supply, Inc.

566

(1)

Paramount Communications v. QVC Network

566

(10)

William T. Allen, Jack B. Jacobson and Leo E. Strive, Jr., Function Over Form: A reassessment of Standards of Review in Delaware Corporate Law

576

(1)

Arnold v. Society For Savings BanCorp, Inc.

576

(2)

Question

578

(1)

Note: Does the Revlon Duty Apply in Chapter 11

579

(1)

Deal Protection Covenants in Negotiated Acquisitions: Revlon, Unocal or the Business Judgment Rule?

580

(1)

Omnicare, Inc. v. NCS Health Care, Inc.

581

(12)

Questin

593

(1)

Brazen v. Bell Atlantic Corp.

593

(5)

Question

598

(1)

Note: A Report Card on the Performance of the Delaware Courts in Acquisition Cases

598

(1)

State Statutes That Aid Directors' Efforts to Thwart Unwanted Takeovers: ``Anti-Takeover Statutes,'' ``Other Constituency Statutes,'' and ``Liability Limitation Statutes''

599

(1)

Note: The Go-Go '80s: The Decade of Greed?

599

(4)

Anti-Takeover Statutes

603

(1)

BNS Inc. v. Koppers Company, Inc.

603

(10)

RP Acquisition Corp. v. Staley Continental, Inc.

613

(1)

WLR Foods, Inc. v. Tyson Foods, Inc.

614

(1)

Note: Comments on Anti-Takeover Statutes

615

(1)

``102(b)(7) Liability Limitation'' Provisions

616

(1)

Arnold v. Society For Savings [Arnold I] BankCorp, Inc.

617

(1)

Arnold v. Society For Savings [Arnold II] BankCorp, Inc.

617

(1)

Emerald Partners v. Berlin

618

(1)

``Other Constituency Statutes''

619

(1)

What's Left for Hostile Bidders?

620

(1)

No Financial Takeovers: The Changing Face of LBOs

620

(4)

The Combination Tender Offer/Proxy Fight

624

(1)

Blasius Industries, Inc. v. Atlas Corp.

625

(5)

MM Companies, Inc. v. Liquid Audio, Inc.

630

(1)

Question

631

(1)

Hilton Hotels Corp. v. ITT Corp.

631

(7)

Question

638

(1)

Note: History of the Hilton Hotels Takeover

638

(1)

Bribes

639

(1)

In re Money Group, Inc. Shareholders Litigation

639

(2)

The Stakeholder Debate: Should the Board's Primary Obligation in Acquisitions Be to Maximize Shareholder Value?

641

(20)

Long-Term Interests of the Community: The CSX Acquisition of Conrail and Herald's Attempt to Buy the Denver Post

641

(1)

Norfolk Southern v. Conrail

641

(2)

Sarah S. Nickerson, The Sale of Conrail: Pennsylvania's Anti-Takeover Statutes Versus Shareholder Interests

643

(3)

Questions

646

(1)

Note: Comment on the Pennsylvania Statutes

647

(1)

Herald Co. v. Seawell

647

(2)

Question

649

(1)

The Plight of Pre-Existing Bondholders in an LBO: The RJR Nabisco Buy-Out

649

(1)

Metropolitan Life Ins. Co. v. RJR Nabisco, Inc.

649

(8)

McMahan & Company v. Wherehouse Entertainment, Inc.

657

(2)

Air Line Pilots Ass'n Intern, v. UAL Corp.

659

(1)

Data on Stakeholder Welfare in Acquisitions

660

(1)

Fiduciary of Acquisition Consultants and Advisors

661

(9)

In re Daisy Systems Corporation

661

(8)

Question

669

(1)

Note: The History of the Daisy Systems Case

669

(1)

Takeovers in Bankruptcy: Claims Trading

670

(7)

In re Allegheny International, Inc.

670

(6)

Note: Rule Change

676

(1)

The Disclosure Requirements of the Federal Securities Acts and State Law

677

(99)

Disclosure Requirements of the Federal Securities Acts

677

(76)

Introduction to Mandatory Disclosure Requirements Under Federal Securities Law

677

(5)

Materiality

682

(6)

TSC Industries, Inc. v. Northway, Inc.

688

(1)

Questions

689

(2)

Lewis v. Chrysler Corporation

691

(4)

Pleading Standards: The PSLRA

695

(1)

Goldstein v. MCI WorldCom

695

(8)

Analysis of the Plaintiffs' Rule 60(b)(2) Request

703

(1)

Projections of Post-Acquisition Performance

704

(1)

SEC Forms and Schedules: Disclosures of Forward-Looking Information Required of Firms Executing Acquisitions

705

(1)

SEC Reg. § 210.11-02(a)

706

(3)

Note: The Obligation to Disclose ``Plans and Purposes'' and Expert ``Reports, Opinions, and Appraisals''

709

(1)

Sec Rules on Permitted or Voluntary Projections

710

(1)

Question

710

(2)

Note: The Duty to Amend, Correct or Update Projections

712

(1)

Case Law on Projections

713

(1)

Virginia Bankshares, Inc. v. Sandberg

713

(4)

Grossman v. Novell, Inc.

717

(8)

Question

725

(1)

Walker v. Action Industries, Inc.

725

(5)

Question

730

(1)

The Duty to Disclose Preliminary Merger Negotiations

731

(1)

Basic, Inc. v. Levinson

731

(5)

Note: What Triggers the Duty to Disclose?

736

(1)

Sec Act Rel. No. 33-6835; Exch. Act Rel. No. 34-26831 (May 18, 1989)

736

(2)

New York Stock Exchange Manual

738

(2)

Question

740

(1)

Note: Footnote 17 in Basic v. Levinson: A Confusing Bit of Dicta on the Business Purpose Exception

740

(3)

Phillips v. LCI International, Inc.

743

(2)

Weiner v. Quaker Oats Co.

745

(2)

Gun Jumping: Pre-Filing Announcements

747

(1)

Disclosing Stock Purchases of 5 Percent or Greater

748

(1)

Rondeau v. Mosinee Paper Corp.

748

(5)

Note: The Effect of § 13(d)

753

(1)

Insider Trading in Advance of Acquisitions

753

(13)

Sec Rules 10b-5 and 14e-3

753

(1)

United States v. O'Hagan

753

(6)

Note: Insider Trading in Advance of Acquisition Announcements

759

(1)

Section 16(b) of the 1934 Act: A Trap for Losing Bidders

760

(1)

Texas International Airlines v. National Airlines, Inc.

760

(3)

Sterman v. Ferro Corp.

763

(1)

Note: The Short-Swing Profit Rule's Application to Shares Exchanged by Officers and Directors in Mergers

764

(2)

State Law

766

(10)

Zirn v. VLI Corp.

766

(1)

Skeen v. Jo-Ann Stores, Inc.

767

(8)

Questions

775

(1)

Accounting and Tax Issues in Mergers and Acquisitions

776

(78)

Accounting for Mergers and Acquisitions

777

(22)

Introduction to Financial Statements

777

(2)

Introduction to Accounting Issues in Intercompany Ownership

779

(2)

Cost Method: Acquisitions of Less Than 20 Percent of Target's Outstanding Common Stock

781

(3)

Equity Method: Acquisitions of 20 Percent to 50 Percent of Target's Outstanding Stock

784

(3)

Consolidations: One Company Acquires Over 50 Percent of the Stock of Another

787

(5)

Note: Accounting Rules' Effect on the Size of an Acquisition

792

(1)

Note: Historical Account of Pooling Accounting

793

(2)

Note: Goodwill Games

795

(1)

Note: WorldCom: Acquisition Accounting as a Ponzi Scheme

796

(1)

Accounting for LBOs

797

(2)

Tax Treatment of Mergers, Acquisitions, and Reorganizations

799

(55)

Introduction to the Transactional Base of Our Federal Income Tax

799

(1)

The Definition of a Tax-Free Reorganization

800

(5)

Internal Revenue Code § 368

805

(2)

Treasury Regulation § 1.368-1

807

(1)

Rev. Proc. 77-37, § 3.02

808

(1)

Questions

808

(1)

T.D. 7745, 1981-1 C.B. 134

809

(1)

Note: Advance Rulings from the IRS

809

(1)

The Tax Consequences of Qualifying as a Tax-Free Reorganization

810

(3)

Note: Why Use a Taxable Exchange?

813

(1)

Note: Election of Form and Allocation of Purchase Price Issues in Taxable Acquisitions

814

(2)

Note: Some Significant Planning Choices for Taxable Stock Acquisitions

816

(3)

The Policy Debate on Tax-Free Reorganizations

819

(1)

American Law Institute, Proposals on Corporate Acquisitions and Dispositions

819

(3)

Note: 1985 Senate Finance Committee Staff Reform Proposal

822

(1)

Steven A. Bank, Mergers, Taxes and Historical Realism

822

(3)

When Are Acquisitions Driven Purely by Tax Avoidance?

825

(1)

Survival of Tax Attributes in an Acquisition

826

(1)

Tax Reform Act of 1986

827

(2)

Note: Restriction on the Fusion of Pre-Acquisition Losses and Gaines: IRC § 384

829

(1)

Omnibus Budget Reconciliation Act of 1989

829

(1)

Leverage in Acquisitions and the Corporate Tax System

830

(1)

Staff Report, Federal Income Tax Aspects of Corporate Financial Structures

830

(9)

Comment: Integrated Effects of Corporate Debt Financing on Tax Collections

839

(1)

Michael Jensen, Steven Kaplan & Laura Stiglan, Effects of LBOs on Tax Revenues of the U.S. Treasury

840

(2)

Alvin C. Warren, Jr., Recent Corporate Restructuring and the Corporate Tax System

842

(1)

Note: Congress' Response to the Tax Incentive to Leveraged Acquisition Financing

843

(2)

Omnibus Budget Reconciliation Act of 1989

845

(1)

Miscellaneous Tax Provisions Relevant to Acquisitions: Golden Parachutes, Greenmail, Poison Pills, and Acquisition Expenses

846

(1)

Golden Parachutes: §§ 280G and 4999

846

(1)

IRS Proposed Regulations, Golden Parachutes § 1.280G-1

847

(1)

Greenmail: § 5881

848

(1)

Revenue Act of 1987

848

(1)

Question

848

(1)

Excise Tax on Terminating Overfunded Pension Plans

849

(2)

Deductibility of Acquisition Fees and Expenses

851

(1)

Indopco, Inc. v. Commissioner

851

(2)

A.E. Staley Mfg. Co. v. Commissioner

853

(1)

Protecting Consumer Interests in Mergers and Acquisitions: The Clayton Act

854

(53)

The Clayton Act

854

(26)

Clayton Act, § 7

855

(2)

Dep't of Justice & Fed. Trade Comm., 1992 Horizontal Merger Guidelines

857

(8)

Questions

865

(1)

Midwestern Machinery, Inc. v. Northwest Airlines, Inc.

865

(2)

United States v. Oracle Corporation

867

(12)

Note: Aftermath of the Oracle Opinion

879

(1)

Price Fixing Among Bidders

880

(3)

Finnegan v. Campeau Corp.

880

(3)

Question

883

(1)

Pre-Merger Notification: The Hart-Scott-Rodino Antitrust Improvements Act of 1976

883

(24)

Hart-Scott-Rodino Antitrust Improvements Act of 1976, Title II

884

(4)

Rules, Regulations, Statements and Interpretations Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976

888

(2)

The HSR Notification and Report Form

890

(1)

The HSR Waiting Period

890

(5)

California v. American Stores Co.

895

(3)

United States v. Computer Associates

898

(9)

Issues in International Acquisitions

907

(55)

Foreign Acquisitions of United States Corporations

907

(26)

Acquisitions That ``Impair National Security''---the Exon-Florio Amendment

907

(2)

Exon-Florio Amendment (§ 5021 of the Omnibus Trade and Competitiveness Act of 1988 adding § 721 to the Defense Production Act of 1950)

909

(2)

Treasury Regulations

911

(3)

Note: The Definition of National Security

914

(1)

Jeremy David Sacks, Monopsony and the Archers: Rethinking Foreign Acquisitions After Thomson-LTV

915

(2)

Note: The Effect of Exon-Florio on Hostile Acquisitions and Acquisition Timing

917

(3)

Federal Legislation Specific to Foreign Acquisitions in Particular Industries or Assets

920

(3)

Other Countries' Investment Barriers

923

(2)

International Agreements on Foreign Direct Investment

925

(1)

Am. Soc'y of Int'l Law Proceedings, Implementation, Compliance and Effectiveness: Toward an Effective International Investment Regime

925

(8)

Extra-territorial Application of United States Laws to Foreign Acquisitions

933

(21)

Federal Securities Laws

933

(1)

Sec, Proposed Rules, Cross-Border Tender and Exchange Offers, Business Combinations and Rights Offerings

933

(4)

Questions

937

(1)

Consolidated Gold Fields, PLC v. Minorco, S.A.

938

(3)

Question

941

(1)

Antitrust Laws

941

(1)

Dep't of Justice & Federal Trade Comm'n, Antitrust Enforcement Guidelines for International Operations

942

(5)

Question

947

(1)

Note: Conflicts with our Trading Partners

947

(1)

United Kingdom Protection of Trading Interests Act of 1980

947

(2)

Question

949

(1)

Jeffrey M. Peterson, Unrest in the European Commission: The Changing Landscape and Politics of International Mergers for United States Companies

949

(3)

The New EC Merger Regulation: A First Assessment of its Practical Impact

952

(2)

Comparative Takeover Law

954

(8)

European Parliament and Council Directive 2004/25/EC of 21 April 2004 on Takeover Bids

954

(5)

Questions

959

(1)

The Future of Takeover Defenses in Europe

959

(3)

Index

962

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