In-house counsel, beware of the MAC. No, we're not talking about the computer. We're talking about the deal-breaker clause in a merger.
It's not always easy for an investor or a potential buyer to walk away from a deal. But with material adverse change, or MAC, there is a loophole for the buyer in a deal to walk away.
As in-house counsel, you may be called upon to participate in M&A deals from time to time, depending on the size of your company and your role at the company. Your company might engage outside counsel from a large law firm as well as the help of investment bankers to close the deal. Nevertheless, you want to know the basics of M&A.
Assume that you are counsel for a small company and a buyer has expressed interest. What's next? Here are some quick things to know about the M&A process.
Facebook CEO Mark Zuckerberg acquired Instagram pretty much on his own, without consulting Facebook's board or its in-house lawyers, The Wall Street Journal reports.
Zuckerberg and Instagram's CEO Kevin Systrom hammered out the $1 billion deal -- the biggest in Facebook's history -- over three days of discussions at Zuckerberg's home in Palo Alto, Calif., according to the Journal. The board "was told, not consulted" by Zuck about the deal just hours before it was set in stone.
Zuckerberg controls 57% of Facebook's voting rights, so he can pursue deals on his own if he chooses, the Journal reports. But when Facebook goes public, he may want to think twice.
Attention attorneys: You may want to remember today as "Facebook buys Instagram" day. Or "Instagram Bought by Facebook" day, whichever you prefer grammatically.
The social network giant paid about $1 billion in cash and stock for Instagram, a popular photo-sharing application, the Los Angeles Times reports. The purchase means some interesting changes for Facebook's users, who will be able to post and follow users on other social networks, Mark Zuckerberg, Facebook's CEO, said in (what else) a Facebook post.
But for general counsels (especially those in tech), the move means so much more.
AT&T has officially ended its $39 billion bid to purchase T-Mobile USA. Last month, the telecom behemoth withdrew its FCC merger application with plans to re-file. But executives quickly realized that, even with changes, there was no way the deal would receive approval.
The company now owes Deutsche Telekom, T-Mobile's parent company, a breakup fee of $4 billion. It'll also need to find new ways to address the mobile spectrum crunch, which would have been eased with the merger.
The failure of the AT&T merger will undoubtedly impact the wireless industry. But what does it mean for corporations nationwide?
Defending against the Justice Department's attempt to block its plans, AT&T wrote in court filings on Friday that the pending T-Mobile merger is a boon for consumers, who would experience better output, fewer dropped calls, and lower prices if the deal is allowed to go through.
The company further asserted that the Department's focus on preventing the reemergence of the Twin Bells has blinded regulators to the realities of the wireless industry, including the extent of actual competition, and surging consumer demand.
Mergers continue to be a hot topic in the U.S. entertainment and media industry with acquisitions slightly up in 2010. Nevertheless, the total value of the deals declined vs. 2009, despite the fact that the entertainment and media industry outpaced the overall U.S. acquisitions, Pricewaterhouse Coopers reports.
Now a new merger between Comcast and NBC has some wondering whether it could set off a chain of increased acquisitions in 2011. If it goes well, it may lead the industry to seek out transaction opportunities as well with an increased demand in social media, international opportunities and video games, the Hollywood Reporter reports.
If your company is involved in social media or video games, it could be a busy year for you as they are ripe for mergers. That's always a double-edged sword, but in this economy, most attorneys are thrilled to see some action. Especially compared to the cost cutting we saw in 2010.
Entertainment and media companies are likely to go looking for deals in 2011, according to a recently-released report. "With the industry's fast-paced shift to digital -- and attractive levels of corporate cash reserves and private equity dry powder, (we believe) the catalysts are in place for more E&M deal activity" this year, says a study by PricewaterhouseCoopers, Variety.com reports.
The King has been sold. But at least he didn't come cheap.
Burger King has been sold to 3G Capital Management for $3.26 billion, approximately $24 a share. $3.26 billion is quite a lot of money, though banks lended over three-quarters of the money, $2.8 billion. Burger King has seen the value of the company take a major hit over the past several years, so getting the company for $3 billion now seems like a steal. Interestingly enough, the company has bounced back and forth from being a public and private company several times.
With the economy down from the financial crisis, many investors see major opportunities for scooping up companies. In particular, fast food and chain restaurants that are public companies may continue to sell. The aquisition of businesses present great opportunities for corporate counsel. A business about to be bought or sold requires excellent legal representation.
Congratulations, it's a merger, or very nearly. The Justice Department announced on August 27 that it has approved the Continental and United Airlines merger. Late last Friday, the DOJ completed its anti-trust review of the merger with the addition of some final details. One specific addition was the agreement to lease landing and take-off rights at Newark Liberty International to Southwest to increase competition at that airport. Currently, United and Continental together offer 442 daily flights at Newark.
According to the report by USAToday, Continental CEO Jeff Smisek, who has been named to run the new company under the name United, said the lease of Newark slots to Southwest is "a fair solution that would allow Continental and United to create an airline that will provide customers with an unparalleled global network and top quality products and services, while enhancing domestic competition at Newark."
