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Financial Institutions M&A 2009: Convergence, Consolidation, Consternation and
Complexity in an Industry in Transition

An Annual Review of Leading Developments
By Edward D. Herlihy et al.*
Pages 70-124 (January 2009)

Chapter 5 — Financial Institution Acquisition Agreements: Structural and Contractual
Issues

The operative provisions of an acquisition agreement are largely shaped by the
structure of, and significant deal issues in, the transaction at hand, and the
representations, covenants, closing conditions and other terms need to be tailored to the
specific situation.

Acquisition agreements for some types of financial institutions (such as
investment management firms, broker/dealers and insurance companies) raise their own
distinct sets of issues, and are discussed in more detail in Chapter 7. Moreover, different
considerations may come into play depending on whether the buyer is a strategic or
financial acquiror.

I. Structural Alternatives For Mergers And Tender Offers
A. Mergers

As with any business combination, the deal structures available for a financial
institution merger transaction are numerous, including, among others:

* Edward D. Herlihy, Craig M. Wasserman, David. S. Neill, Richard K. Kim, Lawrence S. Makow,
Jeannemarie O’Brien, Nicholas G. Demmo, David A. Schwartz, David E. Shapiro, Jeremy L. Goldstein,
Joshua M. Holmes, Matthew M. Guest, Lori S. Sherman, James R. Gilmartin, Ross A. Fieldston, Mark F.
Veblen, Adrian L. Bell, and Brandon C. Price are lawyers with the law firm of Wachtell, Lipton, Rosen &
Katz.

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