Morris Nichols has a robust mergers, acquisitions and divestitures practice.  Combining the decades of experience of our corporate counseling, commercial, bankruptcy and corporate litigation attorneys, Morris Nichols guides clients on all matters of Delaware law relating to such transactions — from directors’ and officers’ fiduciary duties in considering a transaction, to documenting the deal, to defending against class action litigation challenging it.  Our advice in this area extends to public and private companies, negotiated and hostile transactions, and transactions involving corporations and alternative entities such as master limited partnerships.  Our representations include those of the company itself, the full board of directors or a special committee of the board.

Because Delaware law governs compliance with the fiduciary duties of directors and officers or other governing authority of a Delaware entity, regardless of where that entity is headquartered, our experience in that law allows us to provide unparalleled advice to directors and officers in considering, structuring and, if they deem advisable, approving such transactions.  We pride ourselves on working collaboratively among our groups and leveraging our diverse areas of knowledge.  For example, litigators who will be called upon to defend the directors’ decisions are often consulted in connection with the directors’ decision making process. 

In addition to advising on fiduciary duties with respect to such transactions, our attorneys “wrote the law” that will govern the deal.  From name partner Sam Arsht’s work on the 1967 wholesale revisions to the Delaware General Corporation Law to more recent amendments such as drafting Section 251(h) of that code, which has greatly changed practice with respect to two-step acquisitions, to chairing the committees responsible for proposing amendments to the corporate and alternative entity statutes, we understand the nuances of the statutes that govern these transactions.

Moreover, because so many commercial disputes are decided in Delaware courts, we bring to our assignments unrivaled knowledge on how courts will interpret the language we are negotiating and the workings of the courts themselves.  More often than might be expected, contractual terms are interpreted not in a vacuum, but through a gloss of over a century’s worth of common law that continues to develop on a daily basis.  It is our job to know the history of this law as well as recent developments and apply that knowledge to our representations, whether to negotiating a transaction or litigating to enforce our clients’ rights under a transaction document.