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Renewed Focus on Takeover Defenses

By Robert S. Reder, Rachel Fink and Alison Fraser

To say the least, 2008 was a tumultuous time in the financial markets. In addition to failures and bargain-basement sales of major financial institutions, unprecedented governmental intervention in the markets, aborted M&A deals and a record-sized Ponzi scheme, the year witnessed an increased volume of hostile and unsolicited takeover activity. By Sept. 28, 2008, according to Jessica Hall, “Hostile Takeovers Hit Record As Market Swoons,” Reuters.com, Sept. 29, 2008, U.S. hostile deal activity was at a record high, representing a 140% increase from 2007.

While attitudes a year ago might have suggested that 2008 would be a year of great stockholder activism with takeover defenses continuing to fade from the scene, the drying up of credit for M&A transactions and plunging stock prices and asset values actually caused public companies to re-examine their preparedness for hostile activity and, ironically, led to the re-emergence of a takeover defense that had fallen out of favor in recent years ' the stockholder rights plan (a/k/a “poison pill”). In addition, many public companies re-tooled their advance notice bylaws in response to court decisions arising from proxy contests initiated by activist investors.

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