Fiduciary duties typically require one to act in the best interests of their beneficiary, even if those interests may conflict with their own. This can present issues when part of the consideration for an acquisition is contingent on the future performance of the target, otherwise known as an “earn out.” If the buyer completely controls…
Tag: Transactional Law
Will Big Blue’s New Red Hat be a Good Fit?
On October 28, 2018, IBM announced its plan to acquire software developer Red Hat for $34 billion in cash. If the deal goes through, it will be the second largest in industry history1 and the largest deal in IBM’s 107 years of operation.2 This announcement continues a tremendous winning streak for mergers and acquisitions. The…
Challenges of Ecommerce in India
India’s growing ecommerce market has recently been the target of large investments. On Tuesday, October 28, 2013, SoftBank, a Japanese telecommunications and Internet company, announced it was investing $800 million in India’s internet market, specifically in two internet start-ups.1 627 million dollars of this investment will be in Snapdeal.com, an Indian online ecommerce marketplace.2 Additionally,…
Burger King-Tim Hortons Merger: Another Corporate Desertion or Good Business Strategy?
In late August, Burger King announced that it intended to acquire the Canadian coffee and donut chain Tim Hortons for $11 billion.1 The combined company will be headquartered in Canada.2 By purchasing Tim Hortons, Burger King has faced criticism that it is yet another U.S. corporation deserting its country for tax advantages.3 In the last…
Divergent Incentives in Secondary Buyout Transactions Cause Limited Partners to Shoulder Downside Risk Alone
Over the past year secondary buyout transactions have become the increasingly common move of primary private equity fund managers seeking to exit their portfolio company investments in Europe and the United States. Secondary buyouts, also referred to colloquially as “pass the parcel” deals, occur when one private equity firm sells its stake in a portfolio…
The Intersection of Private Equity and ERISA after Sun Capital
In July 2013, the U.S. Court of Appeals for the First Circuit ruled in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund that a private equity fund was considered a “trade or business” under the rules of the Employment Retirement Income Security Act of 1974 (“ERISA”).1 Under this standard, a private equity fund…
Increased Interest in Co-Investment Rights: Justified or Not?
Since the Economic Recession of 2008, it has been more difficult for private equity firms to secure capital commitments from institutional investors and other wealthy individuals for prospective funds. One of the ways firms spark their fundraising efforts is allowing co-investment rights, normally to large institutional investors, which typically allow the institutional investors to directly…
The Collateral Effects of Tesla’s Proposed $5 Billion Battery Plant
Much ink has been spilled in recent weeks regarding Tesla Motor’s announced plans to build a $5 Billion battery factory somewhere in the American Southwest.1 Tesla has announced that the projected cost of the factory is $5 Billion, with roughly $3 Billion of that money coming from “partners”.2 The projected production numbers behind the plans…
It May Be Time to Revisit Institutional Shareholder Activism
Institutional shareholder activism has often been viewed as a positive corporate governance tool to ameliorate shareholder collective action problems and keep management teams and boards of directors in check, particularly for large public companies with a widely dispersed group of shareholders. Typically, an activist shareholder (ranging from large individual stockholders to institutional investors) will use…
In Re Lyondell Chemical Company, The Long Arm of a Failed LBO
To the interested observer of private equity, a typical leveraged buyout follows a relatively predictable sequence. Most buyouts begin with a sponsor such as KKR or Blackstone forming a limited partnership, serving as the general partner, and acquiring initial capital from investors who form the partnership’s limited partners.1 Once a target company has been identified,…