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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, Rachel Irving Pitts, Tim McKeon, David Chorney

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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SEC Adopts Amendments to Financial Disclosure Requirements for Business Acquisitions and Dispositions

June 25, 2020 | Advisory | By Peter N. Cunningham, Daniel A. Lerner

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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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, Daniel B. Bosworth

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, Joshua B. Bergmann, 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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Bankruptcy & Restructuring Viewpoints Thumbnail
Read about the pros and cons for private company buyers seeking to purchase distressed targets through a formal bankruptcy process in the post–COVID-19 era plus strategies for success.
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Real Estate, Construction & Infrastructure Viewpoints Thumbnail

Newly Expanded CFIUS Jurisdiction

February 12, 2020 | Alert | By Cory S. Flashner, Steve Ganis, Robert Kidwell, Alyssa C. Scruggs

This alert covers new regulations taking effect on February 13, 2020 that significantly broaden CFIUS’s jurisdiction by granting it significant new review power over foreign investments in US businesses and real estate.
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Pre-Closing Covenants: Operating in the Ordinary Course of Business

January 29, 2020 | Article | By Nicholas V. Perricone

Read about issues to consider when drafting or negotiating transaction agreements with covenants to operate in the “ordinary course” of business between signing and closing.
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Health Care Viewpoints Thumbnail
In June 2019, the Delaware Supreme Court issued a decision reaffirming a risk of director liability where there is no board-level reporting process for essential compliance matters.  The facts of the case arise from a 2015 listeria outbreak at Blue Bell manufacturing which resulted in the death of three people. The Delaware case reaffirmed the position that directors may be subject to liability if the director “(1) completely fail[ed] to implement any reporting or information system or controls, or (2) having implemented such a system or controls, consciously fail[ed] to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.”  
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Control of Third Party Claims

April 22, 2019 | Alert | By Marc Mantell, Matthew E. Maguire

Indemnification provisions in private company M&A contracts have received a lot of attention in recent years. These provisions are used to allocate risk among participants but there has been a lack of attention paid to another critical provision of these contracts. We highlight the frequency of certain provisions that shift control of these claims and examine the merits of various other approaches.
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Key Takeaways from Akorn v. Fresenius

November 2, 2018 | Video | By Steve Gulotta

In Akorn v. Fresenius, the Delaware Court of Chancery determined that Fresenius validly terminated its agreement to acquire Akorn on the grounds of a material adverse change affecting Akorn’s business. Steve Gulotta discusses the significance of the decision and shares key takeaways.
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This article reviews the Delaware Court’s Akorn decision, which allowed a buyer to escape an acquisition transaction because of a material adverse change affecting the seller’s business.
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President Signs Legislation Reforming CFIUS & Export Controls

August 28, 2018 | Alert | By Alexander Hecht, R. Neal Martin

Congress has continued its 57-year tradition of passing an annual defense authorization bill with the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 finalized by Congress on August 1 and signed into law by President Trump on August 13. The NDAA makes important reforms and updates to the process by which investments in U.S. businesses by foreign persons are reviewed by the Committee on Foreign Investment in the United States (CFIUS) and updates and codifies Department of Commerce practices related to export controls.

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