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.
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