Table of Contents

Research Handbook on Mergers and Acquisitions

Research Handbook on Mergers and Acquisitions

Research Handbooks in Corporate Law and Governance series

Edited by Claire A. Hill and Steven Davidoff Solomon

Global in scope and written by leading scholars in the field, the Research Handbook on Mergers and Acquisitions is a modern-day survey of the state of M & A. Its chapters explore the history of mergers and acquisitions and also consider the theory behind the structure of modern transaction documentation. The book also address other key M & A issues, such as takeover defenses; judges and practitioners' perspectives on litigation; the appraisal remedy and other aspects of Federal and state law, as well as M & A considerations in the structure of start-ups. This Handbook will be an invaluable resource for scholars, practitioners, judges and legislators.

Chapter 5: Equivalence: form and substance in business acquisitions

Charles K. Whitehead

Subjects: law - academic, corporate law and governance, finance and banking law


To what extent should law and regulation treat business transactions – which differ in form, but are economically equivalent – in the same way? And what justifies the imposition of different costs across different transactional forms? This chapter considers equivalence by assessing the effect of different business acquisition forms on corporate stakeholders. It sets out factors that may be used to determine equivalence, as well as considering the extent to which different forms merit the same or different legal and regulatory treatment. There very well may be reasons to impose different requirements on different transactional forms – for example, based on differences in statutes, stakeholders, and judicial scrutiny, as well as the practical realities that make legal or regulatory equivalence difficult to achieve – but by starting with equivalence, we can begin to assess the relative merits of those differences. This chapter also begins to explore the limits of equivalence, suggesting that the computational skills needed to fully assess equivalence around business acquisitions have not yet caught up with the business lawyers’ ability to use different forms to achieve the same substantive results.

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