Thanks to Martin Wolf, this week we’re back to a Tweet Dump. Four helpful client memos and one excellent FT column:
Helpful overview from DLA of at-the-market offerings. Unlike some current practices memos, this one actually includes a list of recent deals. That should be a required feature in any current practices memo.
FT’s Martin Wolf on why Obama’s White Paper won’t work: Too big to fail = Implicit government guarantee of debt = Irresistable temptation to amp up the leverage on risky bets.
Davis Polk’s “New Foundations” memo on Obama’s White Paper is nearly as long as the White Paper itself, but it’s the best memo on this I’ve seen so far.
A&O lawyer muses on trusts and their role in the financial crisis. Takes us back to Roman times. My favorite feature: a world map color-coded by the strength of each country’s trust laws. Very cool.
Lowenstein Sandler surveys some recent earn-out cases. Lesson 1: Courts find damages for breaching earn-outs too speculative, so you need to specify liquidated damages. Lesson 2: Earn-outs are really hard to draft, even when the Seller remains in control of the business after closing. Forget about it when Seller leaves at closing. Lesson 3: “A Seller should not agree to an earn-out unless the Seller is willing to accept the risk that the purchase price paid at closing will turn out to be the sole consideration to be received in connection with the transaction.” That last one may be the Golden Rule of Earn-Outs.