USA Law and Practice Contributed by: Elena Rubinov, George Casey, Heiko Schiwek, Vinita Sithapathy, Pierre-Emmanuel Perais and Clara Pang, Linklaters LLP
• energy-market and regulatory compliance, includ- ing market-based rate authority, and sector-spe- cific obligations (eg, for oil and gas, pipelines or water infrastructure); • material project contracts, including power pur- chase agreements, engineering, procurement and construction agreements, operations and main- tenance agreements, fuel supply contracts and equipment warranties; • which geographies and customers are served, and whether the company is a sole source provider of services in a given area; • when a development-stage project is expected to be completed; • previous commitments to certain vendors for hard- ware, software and/or operations support; • regulatory authorisations, if any, with respect to the transaction; • employee benefits, labour and immigration mat- ters, especially in light of recent regulatory devel- opments requiring enhanced due diligence on immigration compliance, state pay transparency and pay equity laws, non-compete restrictions, SEC claw-back policy requirements and ESG- linked compensation prevalent in the energy sec- tor; and • trade compliance and anti-corruption compliance. 7.2 Restrictions There are generally no statutory or regulatory restric- tions in the US preventing legal due diligence on an energy or infrastructure company. However, sev- eral sector-specific rules impose confidentiality and access limitations that buyers must navigate. Energy companies with critical infrastructure may be subject to cybersecurity and critical-infrastructure protection requirements, restricting disclosure of Critical Energy/Electric Infrastructure Information and other security-sensitive materials. Access to such information may require, among other things, a non- disclosure agreement. Projects involving defence-related facilities, exports, or foreign ownership triggers may require adherence to export-control and national-security restrictions. CFIUS may limit the sharing of sensitive operational data with non-US buyers when the target owns assets
located near military bases, ports, border zones, or key communications infrastructure. These reviews can affect diligence scope and sequencing. Additionally, environmental and safety records main- tained by federal or state regulators may contain protected personal information or enforcement-sen- sitive content, which can only be disclosed through redacted regulatory submissions or controlled-access disclosure. Privileged reports, including internal inves- tigations, root-cause analyses and self-disclosures to the EPA, the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Occupational Safety and Health Administration (OSHA) or state agencies, must be handled carefully to avoid privilege waivers. For a tender offer, the SEC rules require the acquiror to file a Schedule TO. If the deal is for cash consid- eration, the Schedule TO is relatively straightforward and, assuming advance preparation, often filed the day of (or shortly following) the announcement of the bid for the target. For a merger, the parties generally jointly announce the transaction when the definitive merger agreement has been entered into. A publicly traded target company must disclose the material terms of the transaction, in a filing made with the SEC, within four business days of entry into the definitive transaction documents. 8.2 Prospectus Requirements The offer and sale of securities to target sharehold- ers as consideration for the acquisition will need to be registered under the US Securities Act of 1933 (the “Securities Act”), unless an exemption applies. A registration statement would include (among other 8. Disclosure 8.1 Making a Bid Public
information): • risk factors;
• business descriptions; • financial statements; • management’s discussion and analysis of the financial conditions; and
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