ABA Business Law Section publishes 7th edition of ‘Corporate Director’s Guidebook’
The American Bar Association Business Law Section has released the seventh edition of its best-selling “Corporate Director’s Guidebook,” which provides concise, practical guidance to corporate directors in meeting their responsibilities. It focuses on the role of the individual director in the context of the duties and functions of the board and its key committees: audit, nominating and governance and compensation.
Relevant to all corporate directors, this updated guidebook — produced by the Corporate Laws Committee of the ABA Business Law Section — explores the role of directors in the ever-evolving area of engagement between a corporation and its shareholders. To help directors engage in effective oversight and decision-making processes, this guidebook discusses:
• What to consider when joining a board
• Duties of the corporate director
• Tension between long-term strategies for growth and the interests of investors with a short-term focus
• Corporate responsibility and social goals in long-term value creation
• Sustainability and environmental, social and governance (ESG) performance
• Employee safety, welfare and talent development
• Board composition, refreshment, diversity, skills and compensation
• Executive compensation design, particularly as it relates to performance and risk
• Risk management, including processes for identification, assessment and mitigation
• Crisis preparedness, including natural and technological crises as well as reputational risks from any inappropriate, unethical or illegal behavior of executives or other constituents of the corporation
• Fiduciary duties and best practices in mergers and acquisitions (negotiated or unsolicited)
ABA Business Law Section publishes ‘Model Tender Offer Agreement’
The ABA Business Law Section’s Mergers and Acquisitions Committee has published “Model Tender Offer Agreement.” This model is a form of agreement with insightful and practical commentary that provides for the acquisition of a publicly traded company for cash consideration by means of a negotiated tender offer.
The model agreement, which was prepared by the section’s Task Force on Two-Step Tender Offers, includes explanations of various clauses, particularly those relating to the use of a tender offer structure. It contains model provisions and commentary, including key legal considerations, and potential negotiating positions and alternative drafts that might be proposed by a transaction planner for an acquisition of a public company via a two-step tender offer.
Commentary on provisions in the model agreement is included to explain the purpose of the provision and to note some alternatives that a target company might consider or that an acquiror might propose. It focuses on provisions that are unique to a tender offer structure, or where there may be additional considerations in connection with a tender offer structure, rather than on provisions common to both a tender offer structure and a merger structure.
The model agreement was edited by Michael O’Bryan, a partner in the M&A group at Morrison & Foerster LLP in San Francisco; and Eric Klinger-Wilensky, a partner in the corporate group at Morris Nichols in Wilmington, Delaware. They are the co-chairs of the task force and served as editors of the compilation of Model Tender Offer Agreement.
