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Inside M&A – Winter Issue

McDermott recently released the Winter 2014 issue of Inside M&A, which focuses on current issues surrounding mergers and acquisitions.  Articles in this issue include: Delaware Court of Chancery Upholds Forum Selection Bylaws During the last several years, shareholders have challenged nearly every merger and acquisition (M&A) transaction that targeted a U.S. public company where the value of the transaction was greater than $100 million and the offer price was at least $5 per share.  As a result of this litigation explosion, many corporations have adopted forum selection bylaws that require such challenges to be brought in the target company’s state of incorporation.  Chancellor Leo E. Strine Jr.’s decision in Boilermakers Local 154 Retirement Fund v. Chevron Corp. to uphold such bylaws is an important step toward reducing the burden and expense of litigation over M&A deals. Read the full article. Crying Revlon: Delaware Courts Dismiss Claims in...

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Inside M&A – Fall Issue

McDermott recently released the Fall 2013 issue of Inside M&A, which focuses on current issues surrounding mergers and acquisitions.  Articles in this issue include: M&A Corporate Governance: Oversight of the Board’s Financial Advisors Recent Delaware Court of Chancery decisions highlight the need for corporations engaging in M&A transactions to increase their oversight of financial advisors. Paving the Way for More Tender Offers: DGCL 251(h) Streamlines Two-Step Merger Process The newly added Section 251(h) of the Delaware General Corporation Law (DGCL) allows the completion of a second-step merger without stockholder approval under certain circumstances. Cross-Border M&A: Managing the CFIUS Review Process Parties engaging in cross-border M&A transactions should be cognizant of the potential negative outcomes in the Committee on Foreign Investment in the United States (CFIUS) review process and take appropriate measures to protect their...

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Illinois Appellate Court Decision Requires More Than At-Will Employment As Consideration For Non-Compete Agreements

On June 24, 2013, the Appellate Court of Illinois (First District) issued a decision in Fifield v. Premier Dealer Servs., 2013 IL App (1st) 120327, that will make it more difficult for Illinois employers to enforce post-employment non-compete agreements against newly hired employees who are employed for less than two years and leave, for whatever reason, and join a competitor.  The issue in Fifield was whether the promise of at-will employment to a new employee, without more, constitutes consideration adequate to support postemployment restrictive covenants.  Fifield lost his job after his employer was acquired but was subsequently offered employment with the successor company.   As a condition to his employment with the successor company, Fifield signed a two-year post-employment non-compete agreement.  The agreement contained a carve-out allowing Fifield to work for a competitor if he was fired without cause within the first year of employment.  Three...

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The French Legal Framework Relating to Profit-Sharing Premiums

The French legal system provides a variety of ways to secure the involvement of employees in the growth and profits of their company, including compulsory deferred profit-sharing plans (accords de participation), optional voluntary cash-based profit-sharing plans (intéressement), and other similar mechanisms. The Amended Social Security Financing Law of 2011 provided for a new legal framework entitled "profit-sharing" premium (prime de partage des profits), which set forth rules to allocate premiums to the benefit of employees in the event their company decides to increase dividend distributions to its equityholder(s) (the “Premium Allocation Rules”). These Premium Allocation Rules are in force but have not yet been codified.  According to recent government declarations, however, the Premium Allocation Rules could be abrogated by the end of 2013. Overview Generally, the Premium Allocation Rules apply to privately held companies with at least 50 employees as...

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Persons Deemed Managing Directors in Fact in Germany Have Fiduciary Duties Under German Law

Corporate Deal Source is pleased to present the first of many blog posts with an international flavor.  Today’s post discusses a German Supreme Court decision that recently altered the fiduciary duty landscape for a GmbH (i.e., a German limited liability company).  Dr. Clemens Just summarizes briefly below how the German Supreme Court came to the conclusion that an individual lacking a formal appointment as a managing director of a GmbH may indeed owe fiduciary duties to the GmbH.  Understanding these new implications is critical not only for German deal-makers but also for international deal-makers doing deals in Germany. *              *              * Under German corporate law, the managing director of a GmbH (German limited liability company) has general fiduciary duties to the company.  While this concept has not been laid down in German corporate law statutes, it has been widely accepted by German courts.  The precise scope of these fiduciary duties is...

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Welcome to McDermott’s Corporate Deal Source Blog

Where have all the transactions gone?  The first quarter has quietly passed by.  Just a few weeks ago, looking through the pipeline, one could see almost unimpeded to the other side, relatively empty as the bankers say.  But hope exists, as suddenly activity seems to be reemerging.  We call it letter of intent flow (more poetically, LOI Flow).  The beginnings of real transactions.  Concurrently with these beginnings, we launch our inaugural Corporate Deal Source Blog.  And perhaps timing is on our side and we are well positioned to ride the next wave of deal activity from its very beginning. We set out here to provide commentary, not intended for other lawyers, but for our clients and those we hope will find benefit from becoming our clients.  Our goal is to dialogue as much as one can in the blogosphere and that our followers will help drive our content through comment and suggestion.  The Corporate Deal Source Blog aims to be a professional, yet...

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