Mergers and Acquisitions

Abstract

This chapter focuses on mergers and acquisitions (M&A), entailing going-private transactions, tender offers, proxy contests, mergers, and similar types of transactions. While the framework established by the SEC and Congress on the federal level is commendable, significant gaps exist. This chapter focuses on these gaps and recommends specified measures that should be implemented. The recommended measures are directed toward elevating the federal government’s role to serve as the principal regulator overseeing the M&A process. Among the measures that should be adopted are that: state anti-takeover statutes should be federally preempted; the legitimacy of tactics undertaken in response to takeover bids should be within the province of federal law; and a necessary condition as to whether an offensive or defensive maneuver is permissible and given effect is whether the requisite shareholder approval has been obtained. Importantly, the recommendations advanced in this chapter do not materially impede M&A transactions, recognize that shareholder voice merits a primary role in this process, and correctly place matters of national policy with the federal government rather than the applicable state of incorporation.