I have posted a new revised version of my article, “The Merger Agreement Myth” (with Jeffrey Manns of George Washington University Law School). In this article, which will be published in July in the Cornell Law Review, we conduct an empirical analysis of merger announcements to determine whether the financial markets respond to the deal-specific legal terms of merger agreements as opposed to the well-documented response to the financial terms of merger announcements. We find that there is at most a very small market reaction to the revelation of the legal terms of the merger agreement, suggesting that markets do not price the deal-specific details of the agreement’s legal provisions. We explore practical recommendations for deal structure that flow from this empirical finding. Comments are welcome and invited.
“The Merger Agreement Myth” is part of a series of empirical papers in which Jeffrey Manns and I explore the extent to which law and legal terms matter in mergers and acquisitions specifically and corporate law more generally. The next topic we are tackling is the market value of Delaware law. Stay tuned!
Below is the abstract of the article, which is available here.
Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers.
To investigate this question, we designed a modified event study to test whether markets respond to the details of the legal terms of acquisition agreements. Our approach leverages the fact that merger announcements (which lay out the financial terms) are generally disclosed one to four trading days before the disclosure of acquisition agreements (which delineate the legal terms). We focused on a data set of cash-only public company mergers spanning the decade from 2002 to 2011 to ensure that the primary influence on target company stock prices is the expected value of whether a legal condition will prevent the deal from closing.
Our analysis shows that there is no economically consequential market reaction to the disclosure of the details of the acquisition agreement. Markets appear to recognize that parties publicly committed to a merger have strong incentives to complete the deal regardless of what legal contingencies are triggered. We argue that the results suggest that dealmakers and lawyers focus too much on negotiating “contingent closings” that allow clients to call off a deal, rather than on “contingent consideration” that compensates clients for closing deals that are less advantageous than expected. Our analysis suggests drafting recommendations that could enable counsel to protect clients against the effects of the clients’ own managerial hubris in pursuing mergers that may (and often do) fall short of expectations.