“Don’t Ask, Don’t Waive Standstills” Revisited (Rapidly)

In a second Chancery transcript ruling on the subject in recent weeks, Chancellor Leo E. Strine, Jr. has made clear that Delaware has no per se rule against “Don’t Ask, Don’t Waive” standstill provisions (which prohibit a party subject to a standstill, including a losing bidder in an auction, from requesting a waiver from its standstill obligations). The Chancellor also provided guidance for using such a provision as an “auction gavel” to secure the best price reasonably available to a target company involved in a sales process. Last week’s ruling in In Re Ancestry.com is a welcome clarification that will … Read more

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Editor's Tweet: Wachtell Lipton partners opine on Delaware's two recent rulings on "Don't Ask, Don't Waive" provisions (Ancestry.com and Complete Genomics)

Implications of the Chancery Court’s Recent Rulings on “Don’t Ask, Don’t Waive” Provisions for Auction Processes

In two recent rulings, the Chancery Court of the State of Delaware has provided important guidance on how so-called “don’t ask, don’t waive” standstill provisions—which are designed to encourage bidders to provide their best offers during an auction—will be viewed in future litigation.  While the Chancery Court has recognized that “don’t ask, don’t waive” provisions can be appropriate and valuable tools for a board, these two rulings will affect the processes boards establish when conducting an auction process.

“Don’t ask, don’t waive” provisions have become increasingly common in M&A standstill agreements as a way of incentivizing competing bidders to put … Read more

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Editor's Tweet: Gibson Dunn’s Eduardo Gallardo and Aaron Holmes opine on Delaware’s recent rulings in Ancestry.com and Complete Genomics.

Re-energizing the IPO Market

In the policy-oriented paper, “Re-energizing the IPO Market,”which will be published in the 2013 Brookings Press book Restructuring to Speed Economic Recovery, I summarize results from a number of my related co-authored papers and address why IPO volume, and especially small company IPO volume, has been so depressed for more than a decade.

From 1980-2000, an annual average of 310 operating companies went public in the U.S. During 2001-2011, on average only 99 operating companies went public. This decline occurred in spite of the doubling of real gross domestic product (GDP) during this 32-year period. The decline … Read more

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Editor's Tweet: Leading expert on IPOs, Professor Jay Ritter (University of Florida) provides a summary of his work on why IPO volume continues to be so low