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ESG Considerations in M&A Transactions

October 14, 2022 | Advisory | By Francesca A. McGuire, Thomas R. Burton, III

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Read Week 1 of Mintz’s Sell-Side Series, Pre-Planning: Developing Your Goals and Defining Your Game Plan, for tips on setting goals for an eventual sale, building an external and internal team, managing employee relationships, and getting organized.
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What to Watch: ESG in Mergers and Acquisitions

November 30, 2021 | Article | By Kati P. Strzelczyk

In the world of Mergers and Acquisitions (“M&A”), both buyers and sellers are placing greater emphasis on Environmental, Social, and Governance (“ESG”) credentials. 
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This alert discusses the Delaware Supreme Court’s decision in Manti Holdings v. Authentix Acquisition Co. that upheld the enforceability of an advance waiver of statutory appraisal rights by common stockholders.
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Redefining “Business as Usual” in the Time of COVID

June 24, 2021 | Advisory | By James M. McKnight

This advisory discusses how courts could interpret common terms in merger agreements, including material adverse change (MAC), material adverse event (MAE), and force majeure clauses and ordinary course of business covenants, in light of the COVID-19 pandemic.
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363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers

September 11, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a "363 Sale”). We are back with our second post, to provide more detail to the process and discuss some pros and cons of 363 Sales.

As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.
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363 Sales as a Health Care M&A Tool, Part 1 – Overview

July 28, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.

For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.
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This advisory discusses SEC’s amendments to the financial disclosure requirements for business acquisitions and dispositions by reporting companies and IPO candidates.
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Life Sciences M&A Report June 2020

BAND TOGETHER: Corporate & Cultural Convergence in Life Sciences M&A

June 24, 2020 | | By William Whelan, Joshua D. Fox

The Mintz and Mergermarket report on recent M&A activity in the life sciences sector examines deal drivers and companies’ post-closing integration experiences.
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Federal Reserve Main Street Lending Program: Updates, Timing and Certain Considerations

June 12, 2020 | Advisory | By Joseph Price, Joseph J. Ronca

This article discusses updated documentation and timing for the Federal Reserve Main Street Lending Program and certain considerations for companies considering borrowing under the program.
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Revised Federal Reserve Main Street Lending Program: Terms and Key Considerations

May 18, 2020 | Advisory | By Joseph Price, Joseph J. Ronca

This article discusses the recent revisions to the Federal Reserve’s Main Street Lending Program; borrower considerations regarding eligibility and access to the program; implications of certain covenants and restrictions; and considerations under existing debt documents.
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Read about considerations for drafting material adverse change clauses in mergers & acquisitions in light of uncertainties associated with the COVID-19 pandemic.
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As parties to merger or acquisition agreements carefully review their agreements to see what, if any, impacts the COVID-19 pandemic may have, the recent decision from the U.S. District Court for the Southern District of New York in Newmont Mining Corp. v. AngloGold Ashanti Ltd. provides meaningful guidance for the interpretation of Material Adverse Effect (“MAE”) provisions in agreements governed by New York law.
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COVID-19 and Poison Pills: The Right Prescription?

April 30, 2020 | Advisory | By Matthew Gardella, Scott M. Stanton, David G. Conway

The coronavirus pandemic continues to have profound effects on the U.S. and global economies. Investor concerns about the impact of COVID-19 and government-imposed restrictions on individuals and businesses have led to unprecedented market volatility. Further material volatility is anticipated. In this environment, publicly traded companies may want to evaluate the adequacy of their corporate defenses to protect their stockholders from such predatory activities.
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The Federal Reserve Main Street Lending Program: Terms and Key Considerations

April 14, 2020 | Advisory | By Joseph Price, Joseph J. Ronca

This article discusses the Federal Reserve’s Main Street Lending Program, including eligibility; impacts on debt service, capital structure, and strategic planning; and potential obstacles under existing debt and other agreements.
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Middle Market Private Equity Fund Strategies for Managing Portfolio Company Defaults

April 10, 2020 | Advisory | By Joseph Price, Matthew B. Gautier

This advisory reviews strategies that sponsors and their portfolio companies can use to manage defaults, including proactive measures to avoid default, amendments and waivers to realign with a company’s revised outlook, sponsor support through equity cures, and lender forbearance.
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This advisory provides a drafting guide for purchase and sale agreements in the post–COVID-19 era.
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M&A in the COVID Era – Part II – Debt Financing Opportunities for Middle Market PE Funds

April 6, 2020 | Advisory | By Joseph Price, Matthew B. Gautier

This article reviews debt financing opportunities available to investors in a down market and the pros and cons of each type of financing.
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