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Risk Apportionment in thePurchase and Sale TransactionPresented by: Leanne C. Krawchuk, PartnerDentons Canada LLPDentons C...
Outline – Risk Apportionment21. Representations and Warranties2. Indemnity Clauses and Limitations3. Purchase Price Adjust...
Representations andWarranties300 Month 2013 Dentons Canada LLP Document reference #
Representations and Warranties4• What is a representation?• it is a statement of fact, past or existing (it does not speak...
Representations and Warranties5• They become meaningful when tied to the indemnity provisions in thedefinitive agreement• ...
Who should be giving them and regarding what?6• Share Sale• The shareholders are the vendors• Target corporation is not a ...
Who should bear the risk?7• It is dependent on:• The purchase price• Adjustments to the purchase price• Bargaining strengt...
Liabilities8• In a share purchase, the purchaser is buying all known and unknownliabilities• In an asset sale, the purchas...
Negotiating the Risk9• As a result, in a share sale, the purchaser is looking for exhaustiverepresentations on all known l...
Exceptions Introduced by the Vendor to ReduceLiability101. Knowledge qualifier2. Materiality3. Other Exceptions to Disclos...
Knowledge Qualifier11• The vendor will try to limit its representations and warranties to “theknowledge of the vendor”• Ve...
Knowledge Qualifier12• If the purchaser permits this qualification:• The purchaser will want “knowledge” to either:• requi...
Materiality Exception13• The vendor will want to add a level of materiality torepresentations/warranties so that “non-mate...
Materiality Exception14• “The vendor shareholder represents and warrants that, as at the ClosingDate, the target corporati...
Other Exceptions to Disclosure15• The vendor will attempt to qualify the purchaser’s broadly wordedrepresentations with sp...
Survival Periods16• Purchase agreement must contain a survival clause so that therepresentations/warranties do not merge o...
Indemnity Clauses andLimitations1700 Month 2013 Dentons Canada LLP Document reference #
Indemnity Clauses18• An obligation on the first party to indemnify a second party for a lossincurred by the second party• ...
Mobil Oil Canada Ltd. v. Beta Well Service Ltd. (1974), 43DLR (3d) 745 (Alta Sup Ct App Div)19• Indemnification By Contrac...
Mobil Oil Canada Ltd. v. Beta Well Service Ltd. (1974), 43DLR (3d) 745 (Alta Sup Ct App Div)20• Held: The clause only requ...
TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)21• “10. Potter Powe...
TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)22• Held: The wordin...
TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)23• “Rather, in Mobi...
What Alberta Courts are Saying About Mobil Oil - Herronv. Hunting Chase Inc., 2003 ABCA 21924• Section 9.1(a) provides tha...
What Alberta Courts are Saying About Mobil Oil - Herronv. Hunting Chase Inc., 2003 ABCA 21925• Held: The indemnification p...
What Alberta Courts are Saying About Mobil Oil -Sinclaire v. South Trail Shell (1987), 2002 ABQB 37826• 2.14 Indemnity“You...
What Alberta Courts are Saying About Mobil Oil -Sinclaire v. South Trail Shell (1987), 2002 ABQB 37827• Held: “It [Clause ...
Preserve Common Law Right to Sue for Breach28• Often, the purchaser still wishes to also preserve its common law right tos...
Negotiating a Cap29• Vendor Should Negotiate Caps onIndemnity: i.e., a percentage of thepurchase price or a fixed dollaram...
Negotiate an Indemnification Basket30• Vendor to Negotiate Indemnification Baskets: the minimum loss/damage($$) that must ...
31• Buttressing the Indemnity Covenant• In an asset sale, the shareholders may be requested to provideguarantees to back-s...
Purchase Price Adjustmentsand Holdbacks/Escrow3200 Month 2013 Dentons Canada LLP Document reference #
Purchase Price Adjustments33• Purchase price may be dependent on future earnings of the businessover a period of time afte...
Holdbacks/Escrows34• Can the vendor avoid holdbacks or escrow altogether?• Avoid agreeing to too large a portion of the pu...
Maximize the Value Proposition3500 Month 2013 Dentons Canada LLP Document reference #
Maximizing The Value Proposition36A. Legal Factors That Hurt Value in Vendor Business• Failure to appreciate the value in ...
Maximizing The Value Proposition37A. Legal Factors That Hurt Value in Vendor BusinessCont…• Inappropriate or pre-mature di...
Maximizing The Value Proposition38B. Understanding the Unanimous ShareholderAgreement (USA):• What is the share structure?...
Due Diligence3900 Month 2013 Dentons Canada LLP Document reference #
Due Diligence40What is Due Diligence and Why Conduct it?• Investigations into target company’s business, legal and financi...
Due Diligence41• Resource Allocation by Vendor• Which employees will be involved?• “Presale Due Diligence”• Consider overa...
Questions?Presented by:Leanne C. Krawchuk, PartnerEdmonton780 423 7198leanne.krawchuk@dentons.comDentons Canada LLP42
The preceding presentation deals withthe kinds of issues companies dealingwith risk apportionment could face. Ifyou are fa...
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Risk Apportionment in the Purchase and Sale Transaction

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In this presentation, Dentons’ Leanne Krawchuk discusses risk apportionment in the purchase and sale transaction, including:

- Representations and Warranties

- Indemnity Clauses and Limitations

- Purchase Price Adjustments and Holdbacks/Escrow

- Maximize the Value Proposition

- Due Diligence

Published in: Business, Economy & Finance
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Risk Apportionment in the Purchase and Sale Transaction

  1. 1. Risk Apportionment in thePurchase and Sale TransactionPresented by: Leanne C. Krawchuk, PartnerDentons Canada LLPDentons Canada LLP Presentation to theCBA’s Alberta Law Conference 2013
  2. 2. Outline – Risk Apportionment21. Representations and Warranties2. Indemnity Clauses and Limitations3. Purchase Price Adjustments and Holdbacks/Escrow4. Maximize the Value Proposition5. Due DiligenceDentons Canada LLP
  3. 3. Representations andWarranties300 Month 2013 Dentons Canada LLP Document reference #
  4. 4. Representations and Warranties4• What is a representation?• it is a statement of fact, past or existing (it does not speak to the future)• What is a warranty?• it is a promise that a fact is or will be trueDentons Canada LLP
  5. 5. Representations and Warranties5• They become meaningful when tied to the indemnity provisions in thedefinitive agreement• The purchaser is seeking assurances from the vendor(s) that certainfacts are true, and will be true, relating to the purchased assets orpurchased entity; if they prove not to be true, the purchaser is to becompensated for its lossesDentons Canada LLP
  6. 6. Who should be giving them and regarding what?6• Share Sale• The shareholders are the vendors• Target corporation is not a partyunless providing collateral covenants• Joint and several liability amongvendor shareholders or only severalliability• Regarding target corporation and itshistorical businessDentons Canada LLP• Asset Sale• The vendor is the corporation (onlyseveral liability; not joint)• Sometimes the shareholders of thevendor corporation (may then be jointand several liability)• Regarding the purchased assets notthe vendor corporation
  7. 7. Who should bear the risk?7• It is dependent on:• The purchase price• Adjustments to the purchase price• Bargaining strength of the parties• Transaction factors• The “Closing Date” or “Effective Date” is the date that delineates the datefor risk apportionment and is the date the vendor’srepresentations/warranties are to be trueDentons Canada LLP
  8. 8. Liabilities8• In a share purchase, the purchaser is buying all known and unknownliabilities• In an asset sale, the purchaser is usually only buying assets notliabilities, but could buy certain specified liabilities (i.e. assume debtrelated to certain purchased assets)Dentons Canada LLP
  9. 9. Negotiating the Risk9• As a result, in a share sale, the purchaser is looking for exhaustiverepresentations on all known liabilities and is hoping to extract vendorrepresentations on unknown liabilities as well• The vendor will be motivated to reduce its potential liability for a breachof a representation/warranty and will introduce exceptionsDentons Canada LLP
  10. 10. Exceptions Introduced by the Vendor to ReduceLiability101. Knowledge qualifier2. Materiality3. Other Exceptions to Disclosure> the SchedulesDentons Canada LLP
  11. 11. Knowledge Qualifier11• The vendor will try to limit its representations and warranties to “theknowledge of the vendor”• Vendor will want this phrase to mean only “actual knowledge” and of onlycertain vendors (the majority shareholders or management shareholders)Dentons Canada LLP
  12. 12. Knowledge Qualifier12• If the purchaser permits this qualification:• The purchaser will want “knowledge” to either:• require the vendor to have made a reasonable inquiry into the matter; or• to be the knowledge a reasonable person should have using reasonable care ordiligence• The purchase agreement should contain an interpretation section regarding thisphraseDentons Canada LLP
  13. 13. Materiality Exception13• The vendor will want to add a level of materiality torepresentations/warranties so that “non-material breaches” will not resultin a breach of the purchase agreement giving rise to indemnityobligations• Can be defined in relation to having a certain minimum aggregate dollarvalue per year or as a % of the purchase priceDentons Canada LLP
  14. 14. Materiality Exception14• “The vendor shareholder represents and warrants that, as at the ClosingDate, the target corporation is not a party to any material contract exceptas disclosed on Schedule A”.• “material” means, in relation to any contract, having an aggregateminimum value of at least $100,000 on an annual basis”Dentons Canada LLP
  15. 15. Other Exceptions to Disclosure15• The vendor will attempt to qualify the purchaser’s broadly wordedrepresentations with specific exceptions to disclosure which are set out inSchedules; often the result of due diligence• “The vendor shareholder represents and warrants that except as set forthin Schedule B, the target corporation has never received notice of non-compliance with the Occupational Health and Safety Act (Alberta).”Dentons Canada LLP
  16. 16. Survival Periods16• Purchase agreement must contain a survival clause so that therepresentations/warranties do not merge on closing• How long should they last?-typical range is 1 to 3 years; some areindefinite or extend until the expiry of any assessment period• Acts as a time limit on ability to claim for indemnityDentons Canada LLP
  17. 17. Indemnity Clauses andLimitations1700 Month 2013 Dentons Canada LLP Document reference #
  18. 18. Indemnity Clauses18• An obligation on the first party to indemnify a second party for a lossincurred by the second party• Serves to protect the purchaser for a breach of representation/warrantyof the vendor that occurs during the survival period (and vice versa)• Should be drafted to include both direct losses/claims and to include thirdparty claimsDentons Canada LLP
  19. 19. Mobil Oil Canada Ltd. v. Beta Well Service Ltd. (1974), 43DLR (3d) 745 (Alta Sup Ct App Div)19• Indemnification By Contractor:“10. Contractor [Beta] shall be liable for and shall indemnify and save harmlessMobil Oil of and from all manner of actions, causes of action, proceedings, claims,demands, loss, costs, damages and expenses whatsoever which may be broughtor made against Mobil Oil, or which it may sustain, pay, or incur as a result of or inconnection with the performance, purported performance or non-performance ofthis agreement or other work hereunder by Contractor or his sub-contractors andwhether the same results from or in connection with the use by Contractor or hissub-contractors of any machinery, tools or equipment belonging to Mobil Oil, orfrom or in connection with the negligence or wilful acts or omissions of Mobil Oil, itsservants, agents, employees or its other contractors, while acting under thedirection or control of Contractor or his sub-contractors, and Contractor shallfurther indemnify and save harmless Mobil Oil from all claims, suits, and demandsfor infringement of any patent or similar right growing out of or incident toContractor’s performance of said work or the use of material or equipmentfurnished by Contractor.”Dentons Canada LLP
  20. 20. Mobil Oil Canada Ltd. v. Beta Well Service Ltd. (1974), 43DLR (3d) 745 (Alta Sup Ct App Div)20• Held: The clause only required the Defendant (Beta) to indemnify thePlaintiff (Mobil Oil) against claims brought by third parties, and did notapply to direct loss caused by the operations of the Defendant to thePlaintiff.• Reasons: “[T]he “liability” provision and the “indemnification provisions”are linked together by the conjunction “and” … The clause may thereforebe interpreted as providing for the acceptance by the contractor (Beta) ofliability for, and an undertaking to indemnify Mobil Oil against, claims ofthird parties, rather than direct claims of Mobil Oil against the contractorfor loss or damage it might sustain… It must be borne in mind that this isMobils contract. The rule or principle of contra proferentem requires thewords of written documents to be construed more forcibly against theparty using them.”• Decision upheld at the Supreme Court of Canada (Mobil Oil Canada Ltd.v. Beta Well Service Ltd. (1974), 43 DLR (3d) 745 (SCC)).Dentons Canada LLP
  21. 21. TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)21• “10. Potter Power shall indemnify and save harmless TransCanada fromand against all liability, actions, claims, losses, costs and damageswhich may be brought against or suffered by TransCanada and whichTransCanada may incur, sustain or pay arising out of or in connectionwith:(a) construction, operation and maintenance of the Facility (including the DuctSystem);(b) the negligence or willful misconduct of Potter Power, its directors, officers,employees, agents, servants, contractors and subcontractors arising out of orincidental to this Agreement; or(c) a breach by Potter Power of any of the terms and conditions set forth in thisAgreement,except to the extent that such losses or damages, result from thenegligence or willful misconduct of TransCanada.”Dentons Canada LLP
  22. 22. TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)22• Held: The wording of the clause was not ambiguous; it was not confinedto third party claims, and clearly included losses suffered directly by thePlaintiff.• Reasons: “In particular, I adopt the motion judge’s reasoning that thewords “losses, costs and damages which may be… suffered byTransCanada” introduce an obvious alternative to “all liability, actions,claims…. which may be brought against…. TransCanada” and that, whenread in context, the alternative is “more appropriately associated withdamage to TransCanada itself”.• “The key difference between the two provisions [this one and the one inMobil Oil] is the compelling alternative introduced by the words “whichmay be brought against or suffered by” in the Indemnity. In the Mobil Oilprovision, there is no similar clear alternative.”Dentons Canada LLP
  23. 23. TransCanada Pipelines Ltd. v. Potter Station PowerLimited Partnership (2003), 226 DLR (4th) 262 (ONCA)23• “Rather, in Mobil Oil, the potential alternative is between the words “which may bebrought or made against” and the words “which it may sustain, pay, or incur”.However, while the words “which may be brought or made against” appear to be usedsynonymously, such that each verb applies individually to only some of the precedingnouns, it is not obvious whether the words “which it may sustain, pay, or incur” are tobe interpreted synonymously and applied individually to only some of the precedingnouns or whether they are to be interpreted as introducing an alternative by applyingeach verb individually to all of the preceding nouns. Put another way, in Mobil Oil, thewords “which it may sustain, pay, or incur”, when juxtaposed against “which may bebrought or made against” and interpreted in conjunction with the rest of the clause, donot produce the same compelling alternative that exists in the Indemnity”.• “In addition, the commercial context of the two cases is vastly different. Mobil Oilinvolved an indemnity contained in a repair contract between an oil and gas wellservicing company and a well owner. A clause in the repair contract required theservicing company to perform its work in a good and workmanlike manner. It thereforeestablished a standard of performance that was inconsistent with absolute liability onthe part of the contractor… In contrast… neither the specific terms of the …Agreement nor its surrounding context weigh against interpreting the Indemnity asextended to damages suffered by [the Plaintiff] … directly.”Dentons Canada LLP
  24. 24. What Alberta Courts are Saying About Mobil Oil - Herronv. Hunting Chase Inc., 2003 ABCA 21924• Section 9.1(a) provides that the shareholder vendors “shall indemnifyand save harmless the Purchaser […] from and against all Losses which[it] may suffer, sustain, pay or incur as a consequence of a breach of arepresentation and warranty […] or a breach by a Vendor of any of thecovenants made by it in this Agreement […]”• Section 9.1(b) provides indemnification for losses which Hunting (thePurchaser) “may suffer, sustain, pay or incur in connection with anyClaim relating to any product produced or sold, or any service provided,by or on behalf of Chase (the target company) prior to the Time ofClosing.”Dentons Canada LLP
  25. 25. What Alberta Courts are Saying About Mobil Oil - Herronv. Hunting Chase Inc., 2003 ABCA 21925• Held: The indemnification provision would apply to non-third party lossesresulting from breaches of covenants of the shareholder vendors,including losses resulting from breach of the retained earnings covenant.• Reasons: “Subsequent Alberta decisions have not treated Mobil Oil… asauthority for limiting the application of indemnification clauses to thirdparties… Rather than relying on Mobil Oil, the plain and ordinarymeaning of each contract must be assessed in its own context with afocus on the intention of the parties…”• “It follows that s. 9.1(a) provides indemnification for losses suffered by aparty whether or not they relate to claims by third parties… This section[s. 9.1(b)] specifically indemnifies for third party claims, but in no waylimits the broader indemnification in s. 9.1(a).”Dentons Canada LLP
  26. 26. What Alberta Courts are Saying About Mobil Oil -Sinclaire v. South Trail Shell (1987), 2002 ABQB 37826• 2.14 Indemnity“You will indemnify us and hold us harmless against any claim against us(including costs and expenses) resulting from or connected with yourbusiness at the Site, including, without limitation, any claim for damagesrelating to environmental contamination; any persons entering, comingon, or leaving the Site, or using your services; and loss or damage toproperty.”Dentons Canada LLP
  27. 27. What Alberta Courts are Saying About Mobil Oil -Sinclaire v. South Trail Shell (1987), 2002 ABQB 37827• Held: “It [Clause 2.14] would require Cannon… to indemnify Products forliability for negligence of Cannon… on the Site whether Cannon’s negligencewas whole or partial. The Clause would not, however, cover liability fornegligence of Shell or Products on the Site whether whole or contributory.”• Reasons: “… Mobil Oil remains, in my view, authority for the proposition thatindemnity clauses should be read in the overall context of the agreement,and also should be read, where the total [is] unclear, in light of the principleof contra proferentum…• The interpretation by Shell and Products would… seem to impose uponCannon the duty to indemnify Shell and Products even if the loss were foundto be exclusively as a result of the negligence of Products… Such anabsolute shifting of responsibility should… require much clearer languagethan exists here.• …Clause 2.14 is ambiguous in and of itself… apply the contra proferentumprinciple.”Dentons Canada LLP
  28. 28. Preserve Common Law Right to Sue for Breach28• Often, the purchaser still wishes to also preserve its common law right tosue for breach of contract in addition to right to indemnity from vendor;purchase agreement must be clear on thisDentons Canada LLP
  29. 29. Negotiating a Cap29• Vendor Should Negotiate Caps onIndemnity: i.e., a percentage of thepurchase price or a fixed dollaramountDentons Canada LLPPercentage of DealsIncluding Caps forTransactions completedin 2007, 2008 and 2009** Source: American Bar Association’s Business Law Section – 2010 Canadian Private Target Mergers & Acquisitions Deal Points
  30. 30. Negotiate an Indemnification Basket30• Vendor to Negotiate Indemnification Baskets: the minimum loss/damage($$) that must be suffered by a purchaser for a breach of a vendor’srepresentations and warranties• (1) deductible baskets and (2) dollar-one baskets and sometimes (3)combination basketsDentons Canada LLPBaskets as Percentage of Transaction Value for Transactionscompleted in 2007, 2008, and 2009** Source: American Bar Association’s Business Law Section – 2010 Canadian Private Target Mergers & Acquisitions Deal Points
  31. 31. 31• Buttressing the Indemnity Covenant• In an asset sale, the shareholders may be requested to provideguarantees to back-stop the vendor (shell) corporation’s (several)indemnity obligations• Holdbacks from the purchase price may be used by the purchaseras “security” for the indemnity obligations of the vendor and used toset-off any losses• Joint and Several or only Several Indemnity?• Joint and several representations> generally leads to joint andseveral indemnity obligations, with vendors then attempting to limitindemnity amount to their share of purchase price Joint and several = advantage purchaser Several = advantage vendorDentons Canada LLP
  32. 32. Purchase Price Adjustmentsand Holdbacks/Escrow3200 Month 2013 Dentons Canada LLP Document reference #
  33. 33. Purchase Price Adjustments33• Purchase price may be dependent on future earnings of the businessover a period of time after closing. As future earnings will not be knownat the time of closing, a portion of the purchase price is then structuredas an “Earn-Out”• If vendor not involved in the business after closing, vendor has nocontrol on whether earn-outs are met• If vendor has no control in the business after closing, purchaser ortarget company may spin out the business or key assets resulting intargets not being achievable• Normal Earn-Out vs. Reverse Earn-Out• Normal earn-out added to price = Advantage buyer as earn-out is taxableincome• Reverse earn-out taken from price = Advantage vendor as adjustment is all onaccount of capital (proceeds)Dentons Canada LLP
  34. 34. Holdbacks/Escrows34• Can the vendor avoid holdbacks or escrow altogether?• Avoid agreeing to too large a portion of the purchase price being heldback to secure the indemnity obligation (or other covenants) of thevendor or guarantors in the purchase agreement• Ensure any holdback funds are placed in a solicitor’s escrow accountor obtain security from the purchaser to secure the purchaser’sobligation to pay the future (potential) holdbackDentons Canada LLPPercentage of Deals Employing Escrow for Transactions** Source: American Bar Association’s Business Law Section – 2010 Canadian Private Target Mergers & Acquisitions Deal Points
  35. 35. Maximize the Value Proposition3500 Month 2013 Dentons Canada LLP Document reference #
  36. 36. Maximizing The Value Proposition36A. Legal Factors That Hurt Value in Vendor Business• Failure to appreciate the value in the Vendor or moreimportantly in the management that need to stay involved afterthe closing• Failure to properly protect intellectual property (i.e. Copyright,Trademark, Trade Secrets, Industrial Design Issues)• Failure to address important liabilities• Litigation, Environmental liabilities, Tax liabilities andEmployee severance cost liabilities• Failure to appreciate the time involved in completing thetransaction, include due diligence requirementsDentons Canada LLP
  37. 37. Maximizing The Value Proposition37A. Legal Factors That Hurt Value in Vendor BusinessCont…• Inappropriate or pre-mature disclosure• Without Confidentiality Agreement• Disclosing too much information too soon• Lack of control of information disclosureDentons Canada LLP
  38. 38. Maximizing The Value Proposition38B. Understanding the Unanimous ShareholderAgreement (USA):• What is the share structure?• Does the USA drag along minority shareholders or do theyhave pre-emptive rights?C. Purchaser will typically want non-compete from keyemployees and/or departing shareholdersD. Key personnel and strength of management team:ensure they are going to be in place post-closingE. Ensuring survivability of businesstransactions/material contracts/key suppliers/keycustomersDentons Canada LLP
  39. 39. Due Diligence3900 Month 2013 Dentons Canada LLP Document reference #
  40. 40. Due Diligence40What is Due Diligence and Why Conduct it?• Investigations into target company’s business, legal and financial affairs• Reviewing contracts, financial statements, legal public search results,environmental phase I’s or II’s, etc.• To help ensure the intended results:• Is the vendor selling the assets it intends to sell and that the purchaserexpects to purchase?• Is the vendor giving appropriate and correct representations and warranties?Do the Schedules contain accurate disclosure?• Scope, depth and purpose is transaction specific• To determine what consents/notices /rulings are required and how thisaffects Closing– regulatory, other third parties? (i.e. bankers,shareholders approvals, customers, Competition Act, InvestmentCanada Act)Dentons Canada LLP
  41. 41. Due Diligence41• Resource Allocation by Vendor• Which employees will be involved?• “Presale Due Diligence”• Consider overall process in advance• What documents and arrangements need to be disclosed• How will they be assembled, collected and disclosed• Develop a system to collect, index and retain documents• Where is that major customer agreement kept?• Where are the share certificates that are being purchased located?• Will an electronic datasite be used and who will populate and manage it?• Correct issues/defects with current agreements and arrangementsDentons Canada LLP
  42. 42. Questions?Presented by:Leanne C. Krawchuk, PartnerEdmonton780 423 7198leanne.krawchuk@dentons.comDentons Canada LLP42
  43. 43. The preceding presentation deals withthe kinds of issues companies dealingwith risk apportionment could face. Ifyou are faced with one of these issues,please retain professional assistance aseach situation is unique.43

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