Mergers and Takeovers in the US and UK Law and Practice

by Kenyon-Slade, Stephen

• ISBN13: 9780198260516
• ISBN10: 0198260512
• Format: Hardcover
• Copyright: 2004-05-20
• Publisher: Oxford University Press

Summary

A detailed and authoritative practitioner work on mergers and acquisitions of companies in the US and UK, this will be an important reference for lawyers on both sides of the Atlantic (including all major companies with dealings in those jurisdictions). It covers law and practice in the US and UK in equal detail: the US chapters cover both federal and key state regulatory regimes; UK chapters include coverage of the City Code and developments in the European Union. The author combines a strong academic background with extensive experience as a practicing lawyer with the US firm Shearman & Sterling, one of the top mergers and acquisitions firms in the world.

Author Biography

Dr. Stephen Kenyon-Slade is a Director of Marint Limited, a private equity investment firm based in Monaco. He previously practised in the New York and London offices of the mergers and acquisitions group of Shearman & Sterling, one of the world's foremost corporate law firms. Prior to joining Shearman & Sterling, Dr Kenyon-Slade was a Fellow and Lecturer at Selwyn College, Cambridge University, where he taught UK company law and European Union law. He graduated with a PhD degree in Law from Cambridge University in 1991, and is a member of the New York Bar.

Table of Contents

Tables of Cases	xxv
Tables of Primary and Secondary Legislation	xli
A. TAKEOVERS IN THE US---LAW AND PRACTICE
Merger and Tender Offer Structures in the US
Overview of Recommended/Negotiated Acquisitions in the US: Long-form Mergers and Recommended Tender Offers
Introduction---an overview of recommended/negotiated acquisitions compared with hostile takeovers	1	(3)
Negotiated/recommended acquisitions: the long-form stock-for-stock merger	4	(9)
Negotiated/recommended acquisitions: the cash tender offer followed by a back-end `freezeout' merger	13	(9)
Negotiated/recommended acquisitions: share exchange offers---a viable alternative	22	(5)
Mechanics of Long-form Mergers
Introduction	27	(3)
Merger structures	30	(10)
Merger mechanics under the Delaware General Corporation Law---Sections 251 through 261	40	(22)
Principal Clauses in Agreements for Negotiated/ Recommended (i) Long-form Mergers and (ii) Tender Offers
Introduction	62	(1)
Confidentiality agreements	63	(2)
Merger Agreement in multi-step recommended cash tender offer followed by a back-end freezeout merger	65	(17)
Merger Agreements in long-form stock-for-stock mergers	82	(35)
Financial advisor's fairness opinions	117	(1)
Hostile Takeover Techniques: Tender Offers and Shareholder Coercion
Introduction	118	(4)
Historical development of hostile coercive tender offers	122	(4)
Coercion in tender offers; US and UK regulatory responses	126	(10)
Creeping acquisitions in hostile tender offers: acquiring a beachhead stake	136	(3)
Eliminating Minority Shareholders Through Back-end `Freezeout' Mergers; Appraisal Rights and Other Remedies
Introduction	139	(3)
Delaware's short-form `freezeout' merger statute: Section 253	142	(6)
`Proper business purpose' doctrine eliminated as a requirement for a freezeout merger	148	(1)
Dissenting from the freezeout merger: minority shareholder remedies and appraisal rights	149	(9)
Entitlement to the statutory appraisal remedy	158	(12)
Determining the `fair value' of the dissenting shares in an appraisal procedure: from the `Delaware block' method to the `liberalized test of entire fairness'	170	(24)
The test of `entire fairness' under Weinberger v. UOP, Inc.	194
The US Federal Regulatory Structure
Introduction: An Overview of the Williams Act	1	(10)
Acquisitions of 5% or More of the Target's Securities: Schedules 13D and 13G Filings
The reporting requirement of Section 13(d)	11	(1)
Reporting on the short-form Schedule 13G	12	(2)
The `10-day window'	14	(1)
Beneficial ownership	15	(5)
Joint and group filings	20	(1)
Meaning of `group' for purposes of Section 13(d) and (g)	21	(3)
Content of Schedule 13D	24	(7)
Schedule 13G	31	(5)
Content of Schedule 13G	36	(11)
Amendments to Schedules 13D and 13G	47	(3)
Tender Offer Mechanics: Sections 14(d) and 14(e) of the Securities Exchange Act 1934, and Regulations 14D and 14E
Introduction	50	(1)
SEC's M & A Release No. 33-7760; 34-42055; IC-24107; File No. S7-28-98---effective January 24, 2000	51	(1)
Section 14(e) and Regulation 14E: rules which govern all tender offers and exchange offers	52	(4)
Section 14(d) and Regulation 14D	56	(7)
Commencement of a tender offer, filing requirements, and dissemination of tender offer materials	63	(3)
Communications before and after the formal commencement of an offer	66	(2)
Dissemination by long-form publication, or a summary advertisement or the `use of stockholder lists and security position listings'	68	(2)
Specific rules for share exchange offers---'early commencement' and balancing the regulation of cash tender offers and share exchange offers	70	(5)
Early commencement of exchange offers---Rule 14d-4(b)	75	(4)
Tender Offer Materials
The Schedule TO and the `Offer to Purchase'	79	(4)
Contents of the Offer to Purchase	83	(20)
The Timetable for a Tender Offer
Twenty US business day minimum offer period	103	(1)
Subsequent offering period following the initial twenty business day offer period	104	(1)
Prompt payment	105	(1)
Shareholder withdrawal rights	106	(1)
Statutory pro rata requirements	107	(1)
The all holders and best price rules	108	(3)
Restrictions on purchases of Target shares after commencement of the tender offer	111	(1)
Target Corporation Board's Response to the Tender Offer
Rule 14e-2 and Rule 14d-9	112	(6)
The Schedule 14D-9	118	(10)
Amendments to Schedule 14D-9	128	(1)
Tender Offers and `Street Sweeps'
Absence of a definition of `tender offer'	129	(2)
`Street sweeps'	131	(4)
The `eight factor' test---the test in Wellman v. Dickinson	135	(6)
Proposals for Reform	141	(3)
The General Antifraud Provision of Section 14(e) of the Williams Act: An Overview of the Erstwhile Competition Between Federal Law and State Law Regulation of Tender Offers	144	(11)
Going Private Transactions: Rule 13e-3 and Schedule 13E-3
Introduction	155	(4)
Special committee of independent outside directors	159	(3)
Applicable standard of judicial review in `going private' transactions	162	(5)
Application of Rule 13e-3	167	(3)
Contents of the Schedule 13E-3	170	(20)
An Overview of the Hart-Scott-Rodino Anti-Trust Improvements Act
Premerger notification requirements	190	(1)
Threshold tests for application of the HSR	191	(3)
Valuation of securities and assets for purposes of the HSR	194	(2)
Statutory exemptions from the filing obligation	196	(4)
Acquisition of the securities or assets of foreign companies	200	(3)
HSR filing procedures and waiting periods---initial waiting period of 15 calendar days for cash tender offers, and 30 calendar days for other transactions	203
US State Anti-takeover Statutes
Introduction: First Generation Anti-takeover Statutes	1	(7)
The US Supreme Court's Judgment in Edgar v. MITE Corp.	8	(4)
The New Era of Second Generation Takeover Statutes and the US Supreme Court's Judgment in CTS Corp. v. Dynamics Corp. of America	12	(11)
Second Generation Anti-takeover Statutes	23	(21)
Control share acquisition statutes	24	(5)
Supermajority and fair price statutes	29
Control share cash out statutes	23	(11)
Disgorgement and anti-greenmail statutes	34	(3)
Constituency and corporate interest group statutes	37	(5)
Disclosure statutes	42	(2)
Third Generation Anti-takeover Statutes: Business Combination Statutes	44	(5)
The New York Business Combination Statute	49	(5)
Delaware Business Combination Statute	54
Fiduciary Duties in US Corporate Takeovers: The Business Judgment Rule, the Unocal Test, and the Revlon Auction Duty
Introduction: Standards of Judicial Review	1	(9)
The procedural posture of takeover litigation under Delaware law	3	(1)
The crucial importance of determining the correct standard of judicial review: the traditional business judgment rule; entire fairness, the Unocal standard; and the Blasius standard	4	(6)
The Separation of Ownership and Control and General Fiduciary Principles: US and UK Principles	10	(4)
The Business Judgment Rule in US Takeovers
The nature of the business judgment rule	14	(3)
Rationale of the business judgment rule	17	(4)
The traditional allocation of burdens under the business judgment rule	21	(2)
The business judgment doctrine: less protection for defensive measures?	23	(3)
Elements of the business judgment rule: a framework for discussing the duty of loyalty and the duty of care	26	(2)
Aspects of the duty of loyalty in corporate takeovers	28	(11)
Aspects of the duty of care in corporate takeovers	39	(16)
The Evolution and Structure of the Unocal Test
Objections to applying the traditional business judgment rule in takeover transactions	55	(4)
The dilemma facing the Cheff progeny and the answer provided by Unocal	59	(5)
The structure of the Unocal test	64	(5)
Burden shifting under Unocal---shifting the initial burden to the defendant directors	69	(3)
The first stage of Unocal's inquiry: the meaning of a `threat' for purposes of Unocal	72	(3)
The second stage of Unocal's inquiry: the `reasonableness' of a defensive tactic; a `range of reasonableness' under Unitrin	75	(4)
The Application of the Unocal Test in the Delaware Courts: Anderson, Clayton, and Interco to Unitrin
Introduction	79	(1)
Threats of structural coercion	80	(1)
Threats of substantive coercion: Anderson, Clayton	81	(5)
Threats of substantive coercion: Interco	86	(7)
The Interco progeny and increasing formalism: Grand Metropolitan v. Pillsbury and Polaroid II	93	(5)
A return to the flexible Unocal test---the decision in Paramount Communications	98	(6)
A summary and conclusion on the Interco progeny and Paramount Communications---implications for the `just say no' defence	104	(7)
An expanded Unocal test---'draconian' defensive tactics and a `range of reasonableness': Unitrin, Inc. v. American General Corp.	111	(12)
When Does the Unocal Analysis Apply? Standard Business Decisions v. Defensive Measures; Mergers v. Defensive Measures; Enhanced Protection for Pre-Planned Anticipatory Defensive Measures; Shareholder Ratification
Standard business decisions v. defensive measures	123	(3)
Mergers v. defensive measures	126	(2)
Enhanced protection for pre-planned anticipatory defensive tactics	128	(4)
The effect of ratification by the Target's shareholders on the validity of defensive measures, and the applicable standard of review	132	(5)
The Target Directors' Auction Duty Under Revlon and Macmillan
Introduction: The `Revlon auction duty'	137	(4)
The initial uncertainty following Revlon	141	(6)
The auction duty as developed in Macmillan and Paramount/QVC---a `range of reasonableness'	147	(10)
When does the duty to conduct an auction arise? The judgments in Paramount Communications and Paramount/QVC	157	(12)
Tilting the level playing field	169	(23)
The duty to solicit bids	192
Defensive Measures Against Corporate Takeovers
Introduction	1	(3)
Shark Repellents---Structural Defences in the Certificate of Incorporation or By-laws
Introduction: charter and by-law amendments	4	(4)
The defensive effect of shark repellents	8	(2)
Supermajority voting requirements and fair price provisions	10	(8)
Classified or staggered board of directors	18	(4)
Removal of directors only for `cause'	22	(2)
Cumulative voting provisions	24	(4)
Filling vacancies and newly created directorships	28	(6)
Control over the corporate voting machinery: limitations on calling special meetings, written consent procedure and advance notice requirements	34	(1)
Dual Class Capital Structures; `Blank Cheque' Preferred Stock
Introduction	35	(1)
Dual class capital structures under Delaware law	36	(7)
Rule 19c-4 and Stock Exchange policy	43	(3)
Restrictions on the Transfer of Stock; Voting Agreements etc.
Restrictions on stock transfers	46	(2)
Voting trusts and other voting agreements	48	(2)
Shareholder Rights Plans---Poison Pills
Introduction	50	(7)
The Delaware Supreme Court's decision in Moran v. Household International, Inc.	57	(6)
Mechanics for adopting a poison pill	63	(6)
Mechanics and features of the `flip-in/flip-over' poison pill	69	(7)
Hypothetical Target company poison pill example	76	(2)
Redemption of the rights	78	(2)
Variations of the standard poison pill: `chewable pills'; shareholder referendums; adverse person provisions; permitted offer exception	80	(4)
Circumventing the poison pill through a proxy contest: `dead hand' or continuing director provisions	84	(9)
Judicial scrutiny of poison pills	93	(13)
Defensive Restructuring Programmes: Recapitalizations; Defensive Share Issuances; Repurchases and `Greenmail'; `Crown Jewels' Asset Sales and Spin-offs
Recapitalizations: introduction	106	(4)
Implementation of a defensive recapitalization	110	(3)
Recapitalizations: the anti-takeover effect of `poison debt'	113	(2)
Increased management and ESOP voting power in defensive recapitalizations	115	(1)
Judicial scrutiny of defensive recapitalizations	116	(30)
Defensive spin-offs and `crown jewel' sales	146	(4)
Judicial scrutiny of `crown jewel' sales and `spin-offs'	150	(10)
Defensive share insurances and `white squire' transactions	160	(24)
Defensive share repurchase plans: self-tender offers, defensive street sweeps, and standstill agreements	184	(6)
Defensive self-tender offers: compliance with Rule 13e-4 of the Williams Act	190	(29)
Judicial scrutiny of defensive self-tender offers	219	(9)
Defensive street sweeps	228	(3)
Standstill agreements and confidentiality agreements	231	(12)
Greenmail Payments	243	(16)
The opposition to greenmail	244	(4)
The arguments in support of greenmail	248	(6)
Judicial scrutiny of greenmail payments	254	(5)
Lock-up Agreements
Share and crown jewel or asset lock-up agreements	259	(7)
No-shop/No-talk Provisions, Fiduciary Out Clauses, and Break Fees
No-shop/no-talk provisions; `force the vote' clauses; fiduciary duty out clauses	266	(16)
Obstructive Litigation as a Defensive Tactic	282
Proxy Contests and Written Consent Solicitations in the United States
Introduction: Proxy Contests, Consent Solicitations, and Corporate Control	1	(13)
Overview of Federal and State Law Governing Proxy Solicitations Section 14(a) and Regulation 14A of the Exchange Act
Introduction	14	(3)
Federal law regulation of proxy solicitations	17	(1)
Rule 14a-12: `Solicitation before furnishing a proxy statement' and the requirement to provide a proxy statement under Rule 14a-3	18	(4)
Rules 14a-1 and 14a-2: `solicitation'	22	(5)
Rule 14a-3 and Schedule 14A: disclosure requirements	27	(27)
Rule 14a-4, Rule 14a-5, and Rule 14a-10: proxy card and presentation of information in proxy statements; `short slates' and discretionary voting authority	54	(4)
Rule 14a-6: filing requirements and confidential treatment of preliminary proxy materials	58	(4)
Rule 14a-7: shareholder lists; shareholder inspection rights under state law	62	(2)
Shareholder inspection rights under state law	64	(4)
Rule 14a-8: inclusion of shareholder proposals in the corporation's proxy statement	68	(6)
Rule 14a-13: duty of corporation to communicate with beneficial owners	74	(1)
Rule 14a-9: general anti-fraud provision	75	(2)
State law duties of disclosure	77	(8)
State Corporation Laws Regulating Proxy Solicitations and Shareholder Meetings
Introduction	85	(2)
Quorum requirements, voting and supermajority voting requirements, notice, and record date provisions	87	(5)
Annual shareholders' meetings and the calling of special shareholders' meetings: postponing shareholders' meetings in corporate control contests	92	(8)
Advance notice provisions and requirements, and shareholder nominations and proposals	100	(8)
Corporate Action by Written Consent
Introduction	108	(4)
The use of the written consent procedure in corporate control contests	112	(8)
The fixing of a record date in the written consent procedure	120	(3)
Impermissible Manipulation of the Corporate Machinery: The `Compelling Justification' Test in Blasius Industries, Inc. v. Atlas Corp.	123	(10)
The Interaction Between the `Compelling Justification' Test under Blasius, and the Unocal/Standard of Review	133
B. TAKEOVERS IN THE UK---LAW AND PRACTICE
The Framework of UK Takeover Regulation
Introduction: The Central Role of the City Code on Takeovers and Mergers; Interaction with the Companies Act 1985	1	(2)
General Principles of the City Code	3	(9)
Overview of the General Principles	4	(8)
The City Code: Rules of Best Practice, Jurisdictional Ambit, and Administration
Rules of best practice	12	(2)
Jurisdictional ambit of the City Code	14	(4)
Administration of the City Code	18	(7)
The Self-regulatory Nature of the City Code
Background and enforcement	25	(7)
Judicial review of Panel decisions: the judgments in Datafin and Guinness	32	(9)
An Overview of UK Acquisition Methods
Offers under the City Code, and schemes of arrangement under the Companies Act 1985	41	(10)
Overview of a typical offer made under the City Code	51	(9)
The Financial Services and Markets Act 2000
Background and overview	60	(3)
The regulation of market abuse	63	(8)
Stock Exchange Regulations Affecting Takeovers in the UK
Listing rules---the `Purple Book'	71	(5)
Purple Book, Chapter 10: transactions; and paragraph 10.45: takeovers and mergers	76	(11)
Financial Assistance and MBOs under Section 151 of the Companies Act 1985
Introduction	87	(4)
Section 151---the general prohibition	91	(3)
The meaning of `financial assistance'	94	(3)
Exceptions to Section 151	97	(10)
Financial assistance in public to private MBO transactions	107	(12)
Liability for breach of Section 151	119	(4)
Reform of Sections 151 to 158 of the Companies Act 1985	123	(1)
UK Merger Control under the Enterprise Act 2002
Introduction and overview	124	(3)
Transactions subject to the Enterprise Act 2002, and applicable thresholds	127	(2)
Timetable for reference	129	(1)
Review and referral procedures of the OFT; confidential guidance	130	(5)
Review process of the CC and the `SLC' determination	135	(5)
Overview of Competition Law Governance under the EC Merger Regulation
Introduction	140	(2)
Notification on Form CO	142	(2)
Thresholds for determining a `community dimension'	144
Stakebuilding Below the 30% `Control' Threshold; the `SARs' and Partial Offers; Statutory Schemes of Arrangement and Compulsory Acquisitions of Minority Shares
Introduction	1	(2)
Disclosure under Part VI Companies Act 1985: Acquisitions of 3% or more of the Target's shares
Introduction	3	(1)
The disclosure of `notifiable interests' of 3% of a class of shares	4	(2)
Information to be disclosed under Part VI of the Companies Act 1985	6	(1)
`Interests' in shares for purposes of Part VI of the Companies Act	7	(3)
`Notifiable interests' held by a group of persons; `concert parties'	10	(5)
Penalties and investigations under Part VI of the Companies Act 1985	15	(3)
Statutory investigations	18	(5)
The Substantial Acquisition Rules ('SARs')---'Dawn Raids'
Introduction	23	(5)
The provisions of the SARs	28	(11)
Partial Offers: Restrictions under Rule 36 of the City Code	39	(8)
Statutory Mechanisms for Effecting Takeovers in the UK
Scheme of arrangement under Sections 425--427 of the Companies Act 1985	47	(14)
Reconstruction in the course of voluntary liquidation under Section 110 of the Insolvency Act 1986	61	(3)
Compulsory Acquisition of Minority Shareholders
Introduction	64	(1)
Sections 428--430A of the Companies Act 1985: compulsory acquisition of shares	65	(17)
Elimination of minority shareholders pursuant to a scheme of arrangement under Sections 425--427 of the Companies Act 1985	82	(3)
Elimination of minority shareholders pursuant to a reconstruction under Section 110 of the Insolvency Act	85	(1)
Elimination of minority shareholders pursuant to a reduction of capital under Section 135 of the Companies Act	86	(5)
Provisions of the articles of association allowing for the compulsory acquisition of minority shares	91
The Regulation of Takeovers under the City Code
Introduction: An Overview of the City Code	1	(9)
The definition of `control' under the City Code	4	(3)
Definition of `acting in concert' under the City Code	7	(2)
Definition of `associate' under the City Code	9	(1)
Preliminary Steps: The Approach, Announcements of the Offer, and Independent Financial Advice under Rules 1, 2, and 3 of the City Code
The approach. City Code, Rule 1, and General Principle 3	10	(3)
Secrecy, timing, and contents of announcement. City Code, Rule 2	13	(18)
Independent financial advice. City Code, Rule 3	31	(7)
The Regulatory Timetable, Revisions to the Offer, and Shareholder Withdrawal Rights: Rules 30 to 34
Posting the offer document and the offeree board circular. Rule 30	38	(1)
The regulatory timetable	39	(5)
Restriction on Target company announcements after the 39th day. Rule 31.9	44	(1)
No extension statements. Rule 31.5	45	(2)
Payment of consideration. Rule 31.8	47	(1)
Revisions to the offer. Rule 32	48	(3)
No increase statements. Rule 32.2	51	(3)
Alternative offers. Rule 33	54	(2)
Withdrawal rights. Rule 34	56	(1)
Timetable for a Bid	57	(1)
Counteracting Shareholder Coercion in Takeovers: Acceptance Conditions, Pricing Requirements, and the Prohibition of Shareholder Discrimination	58	(35)
The 50% acceptance condition. Rule 10	59	(3)
Announcement of acceptance levels. Rule 17	62	(3)
Nature and amount of the offer price. Rule 11 and Rule 6	65	(14)
Comparable offers and offers for convertible securities. Rules 14 and 15	79	(4)
The prohibition of special arrangements with favourable conditions. Rule 16	83	(7)
Inducement fees ('break fees'). Rule 21.2	90	(3)
Conditions to Which the Offer is Subject. Rules 12 and 13 Competition law reference. Rule 12	93	(11)
Rule 13 Conditions	95	(9)
Post-offer Restrictions on Subsequent Offers and Acquisitions Rule 35
Introduction	104	(4)
Post-offer restrictions following a withdrawn or lapsed offer. Rule 35.1(a)	108	(1)
The obligation to confirm whether or not an offer will be made. Rule 35.1(b)	109	(3)
Regulation of the price of post-offer purchases by a majority shareholder. Rule 35.3	112	(1)
Panel dispensations from Rules 35.1 and 35.2	113	(3)
Disclosure Requirements and the Regulation of Information Under the City Code: Standards of Care and Documents in Takeover Transactions
Introduction	116	(2)
Directors oversight function	118	(2)
General obligations as to information, responsibility for information, and standards of care as to information. Rules 19 and 23	120	(10)
Equality of information to shareholders and competing bidders. Rule 20	130	(6)
The availability of documents and the display of documents. Rules 19.7 and 19.8, and Rule 26	136	(3)
The Offer Document and Disclosures by the Offeror. Rule 24
Introduction	139	(1)
Rule 24 of the City Code	140	(19)
The Target Company's Circular: The Response of the Target Company's Board of Directors. Rule 25
Introduction	159	(1)
Views of the Target company's board of directors and comments on the offeror's future intentions regarding the Target company. Rules 25.1 and 25.2	160	(2)
Rule 25.3. Shareholdings and dealings	162	(1)
Rule 25.4. Directors' service contracts	163	(1)
Rule 25.5. Arrangements in relation to dealings	164	(1)
Rule 25.6. Material contracts	165	(1)
The Regulation of Profit Statements and Asset Valuations. Rules 28 and 29
Profit forecasts. Rule 28	166	(6)
Asset valuations. Rule 29	172	(4)
Advertisements, Telephone Campaigns, Interviews, and Debates
Advertisements. Rule 19.4	176	(3)
Telephone campaigns. Rule 19.5	179	(1)
Interviews and debates. Rule 19.6	180	(1)
Stakebuilding and Disclosure of Share Dealings: City Code, Rules 4, 5, 7, and 8
Introduction	181	(1)
Restrictions on dealings. Rule 4	182	(5)
Timing restrictions on acquisitions. Rule 5	187	(3)
Consequences of certain dealings. Rule 7	190	(1)
Disclosure of dealings during the offer period. Rule 8	191	(5)
The Mandatory Bid Obligation Under Rule 9 of the City Code
The obligation to make a mandatory bid	196	(6)
Restrictions on the conditions of a mandatory offer. Rule 9.3	202	(4)
Competition law issues: references to the Competition Commission and the European Commission. Rule 9.4	206	(1)
Price and consideration under a mandatory bid. Rule 9.5	207	(1)
Obligations of directors selling shares. Rule 9.6	208	(1)
Restrictions on the exercise of control by an offeror. Rule 9.7	209	(1)
The meaning of `acting in concert' for purposes of Rule 9 of the City Code	210	(22)
Possible requirement to make a mandatory offer due to redemption or repurchase by a company of its own securities. Rule 37	232
Defensive Measures in UK Takeovers
An Overview of Defensive Measures in the UK: Contrasts with US Law and Practice
Introduction	1	(4)
Defensive options in the UK: contrasts with the US	5	(4)
General fiduciary duties of directors, obligations under the City Code and the Companies Act 1985	9	(14)
Restrictions on responsive defensive measures: General Principle 7 and Rule 21	23	(4)
Restrictions on obstructive defensive litigation in UK takeovers	27	(6)
Defensive Actions in Response to a Hostile Offer
Criticism of the offer and the offeror---the offeree board defence document	33	(10)
Management sponsored alternative transaction---defensive recapitalization	43	(3)
Competitive bidding contests	46	(21)
Defensive Measures Adopted in Advance of an Offer
Introduction	67	(2)
Classes of shares or convertible securities with limited or super-voting rights	69	(6)
Defensive share issuance to a friendly third party or an employee trust	75	(21)
Defensive share repurchase programmes	96
C. CROSS BORDER TRANSACTIONS
Cross Border Mergers and Takeovers in the UK and the US
Introduction	1	(5)
Cross Border Acquisitions for Cash	6	(3)
Acquisition of UK Target for cash	7	(1)
Acquisition of US Target for cash	8	(1)
Acquisition of UK Target by US Acquiror in Consideration for Shares	9	(2)
Acquisition of US Target by UK Company for Shares	11	(1)
An Overview of Certain Exemption From US Registration Requirements in Cross Border Transactions	12	(5)
Offshore offerings: Regulation S	13	(2)
Private placements, Rule 144A and vendor placements	15	(2)
Excluding US Holders and `Tier I and II Exemptions' for `Foreign Private Issuers'
Introduction: excluding US holders from an offer; SEC cross border elease	17	(7)
The Tier I Exemption	24	(7)
The Tier II Exemption	31	(7)
Determining thresholds of US ownership of Target securities	38	(3)
Rule 14e-5, UK City Code and Tier I Exemptions for Purchases Made During an Offer Period	41	(4)
Exemption for offers under the UK City Code	42	(1)
Exemption for Tier I transactions	43	(2)
Dual Listed Company Transactions
Introduction	45	(2)
Separate entities or `parallel' structures	47	(1)
Combined entities or joint venture structure	48	(3)
The twinned entities/stapled stock structure	51	(1)
Application of the City Code to DLC structures; anti-takeover provisions in a DLC structure	52	(3)
The EU Directive on Takeovers
Introduction	55	(5)
An overview of the principal provisions of the Takeover Directive	60	(711)
Appendix	771	(4)
Index	775