Chapter 11: The role of judicial opinions in shaping M & A practice
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This chapter reviews multiple ways in which judicial opinions in Delaware litigation involving mergers and acquisitions have influenced the process and content of such transactions. The courts achieve this influence by characterizing conduct as salutary or problematic, by validating or invalidating elements of transactions, and by providing interpretations of the agreements governing those transactions. As illustrations, this chapter reviews the impact of judicial opinions on use of fairness opinions, drafting of material adverse change (‘MAC’) clauses, the demise of two-tier tender offers, the emergence of poison pills, the use of special committees, the scope and content of deal protection measures, and disclosure of investment banker conflicts of interest.

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