This webinar discusses negotiating mergers and acquisitions deals. It will involve panelists acting as buyers' and sellers' counsel negotiating various deal points like representations and warranties, indemnification, purchase price payment mechanisms, and other terms. The panelists are experienced M&A attorneys and deal professionals who will guide the audience through negotiations in key areas like closing conditions, post-closing covenants, choice of law/venue, and dispute resolution. The goal is to provide practical guidance on navigating complex M&A negotiations.
Key & Common Negotiated Provisions - Part 2 (Series: PRIVATE COMPANY M&A BOOT...Financial Poise
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. Episodes 3 and 4 of this series explain specific, common provisions and discuss how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Between Episodes 3 and 4, topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/on_demand_webinars/common-negotiated-provisions-part-2/
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. This episode explains specific, common provisions and discusses how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
Key Provisions in M&A Agreements (Series: M&A Boot Camp)Financial Poise
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. This episode explains specific, common provisions and discusses how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/key-provisions-in-ma-agreements-2021/
Representing Asset Purchasers in Bankruptcy (Series: Bankruptcy Transactions:...Financial Poise
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the bankruptcy code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/representing-asset-purchasers-in-bankruptcy-2020/
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
Part of the webinar series: M&A BOOT CAMP 2021
See more at https://www.financialpoise.com/webinars/
The M&A Process (Series: Private Company M&A Boot Camp 2020)Financial Poise
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-ma-process-2020/
A deposit is a pre-agreed instalment towards the purchase price in a sale contract.
The Courts have held that the 2 functions of a deposit are to be:
- an earnest commitment to bind the bargain, which means a deposit acts as an indication the Buyer is serious in carrying out the bargain; and
- a guarantee of due performance, that is security of the performance.
A deposit is usually paid at or upon shortly upon the buyer’s signing of the contract.
Usually, a deposit should be no more than 10% of the total purchase price, and commonly may be less. Note: there is no specific laws on that deposit percentage amount per se*.
The other practical, commercial and financial reasons for why a deposit is useful:
> Often the seller will incur not-insignificant fees and expenses (e.g. sale preparatory work and undergoing due diligence, applying to lessor for consent to assignment of lease etc), independent of whether the actual contract proceeds to settlement or completion. So may be also used to partially-compensate for some of those costs incurred If the buyer ultimately walks away”.
> Loss of potential, other sale opportunities during the express or implied exclusivity period during the conditions precedent of sale contract. This could be months or longer
> It's good to have the buyer show it has “skin in the game” by having such "hurt money" put upfront on & the table.
Tip: Even with the best of Confidentiality Deeds/NDAs , the deposit helps reinforce the value and proprietary nature of the seller’s business or entity.
> Not uncommonly, the Buyer entity may be newly-established . Therefore, if there is default or repudiation, even if they are subsequently pursued by the seller, the Buyer may not have any actual capitalisation to be realised against!
> Lastly, if a buyer or won’t (or can’t!?) put up even the deposit, then you should have serious concerns about their financial capacity to commit all the way through the transaction.
Representing Asset Purchasers in Bankruptcy (Series: Bankruptcy Transactions ...Financial Poise
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the Bankruptcy Code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. For 2021, professionals must also understand the impact that the economic programs enacted under the CARES Act may have on purchasing such assets. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/representing-asset-purchasers-in-bankruptcy-2021/
Key & Common Negotiated Provisions - Part 2 (Series: PRIVATE COMPANY M&A BOOT...Financial Poise
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. Episodes 3 and 4 of this series explain specific, common provisions and discuss how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Between Episodes 3 and 4, topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financialpoisewebinars/on_demand_webinars/common-negotiated-provisions-part-2/
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. This episode explains specific, common provisions and discusses how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
Key Provisions in M&A Agreements (Series: M&A Boot Camp)Financial Poise
Although every deal is different, understanding any purchase/sale agreement will help you understand other purchase sale agreements. Stated another way, most M&A documents include a similar set of sections and use a similar vocabulary. This episode explains specific, common provisions and discusses how buyers and sellers approach these provisions differently, particularly in light of situational differences (e.g. whether the assets being bought and sold are equity of a company or the assets of a company; whether the seller is going to cease to exists or not). Topics covered will include tax issues; corporate governance; closing conditions; representations and warranties; indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and employment issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/key-provisions-in-ma-agreements-2021/
Representing Asset Purchasers in Bankruptcy (Series: Bankruptcy Transactions:...Financial Poise
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the bankruptcy code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/representing-asset-purchasers-in-bankruptcy-2020/
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
Part of the webinar series: M&A BOOT CAMP 2021
See more at https://www.financialpoise.com/webinars/
The M&A Process (Series: Private Company M&A Boot Camp 2020)Financial Poise
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/the-ma-process-2020/
A deposit is a pre-agreed instalment towards the purchase price in a sale contract.
The Courts have held that the 2 functions of a deposit are to be:
- an earnest commitment to bind the bargain, which means a deposit acts as an indication the Buyer is serious in carrying out the bargain; and
- a guarantee of due performance, that is security of the performance.
A deposit is usually paid at or upon shortly upon the buyer’s signing of the contract.
Usually, a deposit should be no more than 10% of the total purchase price, and commonly may be less. Note: there is no specific laws on that deposit percentage amount per se*.
The other practical, commercial and financial reasons for why a deposit is useful:
> Often the seller will incur not-insignificant fees and expenses (e.g. sale preparatory work and undergoing due diligence, applying to lessor for consent to assignment of lease etc), independent of whether the actual contract proceeds to settlement or completion. So may be also used to partially-compensate for some of those costs incurred If the buyer ultimately walks away”.
> Loss of potential, other sale opportunities during the express or implied exclusivity period during the conditions precedent of sale contract. This could be months or longer
> It's good to have the buyer show it has “skin in the game” by having such "hurt money" put upfront on & the table.
Tip: Even with the best of Confidentiality Deeds/NDAs , the deposit helps reinforce the value and proprietary nature of the seller’s business or entity.
> Not uncommonly, the Buyer entity may be newly-established . Therefore, if there is default or repudiation, even if they are subsequently pursued by the seller, the Buyer may not have any actual capitalisation to be realised against!
> Lastly, if a buyer or won’t (or can’t!?) put up even the deposit, then you should have serious concerns about their financial capacity to commit all the way through the transaction.
Representing Asset Purchasers in Bankruptcy (Series: Bankruptcy Transactions ...Financial Poise
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the Bankruptcy Code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. For 2021, professionals must also understand the impact that the economic programs enacted under the CARES Act may have on purchasing such assets. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/representing-asset-purchasers-in-bankruptcy-2021/
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
When business owners come to the point where they simply can’t see eye to eye, success can become unfeasible. Disputes between business owners can arise from any number of issues and have varying impacts on the actual business, ranging from simple distraction to total dissolution. Depending on the business and circumstance, the means for resolution may or may not be provided for in the relevant by-laws or shareholder agreement. In this webinar, the expert panel discusses different types of shareholder disputes and corresponding remedies, including alternative dispute resolution, buy-sell agreement provisions, and share valuation considerations.
Part of the webinar series: Complex Financial Litigation 2021
See more at https://www.financialpoise.com/webinars/
Help, My Business is in Trouble! (Series: Restructuring, Insolvency & Trouble...Financial Poise
When a business becomes financially troubled, the business owner often experiences denial, paralysis, or both. Lenders commonly lose confidence and then trust in the business, as communications tend to break down, deadlines are missed, and promises are broken. Small business owners commonly have issued personal guarantees, so business failure can often lead to personal financial stress. The good news is the business and business owner usually has some options, and even some leverage. This webinar explains what a business owner should- and should not- consider and do when dealing with financial trouble. Specific topics include discussion of bankruptcy (Chapters 7 and 11); assignments for the benefit of creditors; and friendly foreclosures. This webinar provides the business owner and her advisors with an overview of various restructuring and liquidation methods, a framework for how to decide between them, and practical tips for traversing the difficult environment that is financial distress.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/help-my-business-is-in-trouble-2020/
In this webinar presenation, you will learn practical tips on drafting and understanding commercial agreements. Extract practical insights to drafting and understanding commercial agreements and learn techniques used to allocate or transfer economic risk.
When a business becomes financially troubled, the business owner often experiences denial, paralysis, or both. Lenders commonly lose confidence and then trust in the business, as communications tend to break down, deadlines are missed, and promises are broken. Small business owners commonly have issued personal guarantees, so business failure can often lead to personal financial stress. The good news is the business and business owner usually has some options, and even some leverage. This webinar explains what a business owner should- and should not- consider and do when dealing with financial trouble. Specific topics include discussion of bankruptcy (Chapters 7 and 11); assignments for the benefit of creditors; and friendly foreclosures. This webinar provides the business owner and her advisors with an overview of various restructuring and liquidation methods, a framework for how to decide between them, and practical tips for traversing the difficult environment that is financial distress.
Part of the webinar series:
RESTRUCTURING, INSOLVENCY & TROUBLED COMPANIES 2022
See more at https://www.financialpoise.com/webinars/
Structuring and Planning the M&A Transaction (Series: Private Company M&A Boo...Financial Poise
There is an old carpenters’ expression, “measure twice, cut once.” M&A work is just one of many areas in business and law where this expression resonates. Buyers and sellers, like chess players anticipating many moves in advance, should envision and plan the route to get a deal done, including anticipated detours, at the onset of the transaction.
This webinar discusses the similarities and differences between basic M&A transaction structures; purchase price payment concerns; the most common issues that arise in the early stages of M&A transactions of all kinds; the relationship between ostensibly unrelated sections of an M&A agreement; and transaction timeline. One focus of this episode is a threshold question in many deals: whether the buyer will buy equity or assets. This episode will, in summary form, cover many of the issues discussed in greater depth in subsequent episodes.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/structuring-and-planning-the-ma-transaction-2020/
When business owners come to the point where they simply can’t see eye to eye, success can become unfeasible. Disputes between business owners can arise from any number of issues and have varying impacts on the actual business, ranging from simple distraction to total dissolution. Depending on the business and circumstance, the means for resolution may or may not be provided for in the relevant by-laws or shareholder agreement. In this webinar, the expert panel discusses different types of shareholder disputes and corresponding remedies, including alternative dispute resolution, buy-sell agreement provisions, and share valuation considerations.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/resolving-shareholder-disputes-2020/
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the Bankruptcy Code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. For 2022, professionals must also understand the impact that the economic programs enacted under the CARES Act may have on purchasing such assets. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
Part of the webinar series: BANKRUPTCY TRANSACTIONS - 301- ADVICE FOR THE ADVANCED PRACTITIONER 2022
See more at https://www.financialpoise.com/webinars/
Elderly care conference 2017 - Workshop stream A - the legal framework: share...Browne Jacobson LLP
This presentation covers what the difference between a share sale and an asset sale is. Key documents involved in a transaction, due diligence, how to address risks and limitation of liability.
There is an old carpenters’ expression, “measure twice, cut once.” M&A work is just one of many areas in business and law where this expression resonates. Buyers and sellers, like chess players anticipating many moves in advance, should envision and plan the route to get a deal done, including anticipated detours, at the onset of the transaction.
This webinar discusses the similarities and differences between basic M&A transaction structures; purchase price payment concerns; the most common issues that arise in the early stages of M&A transactions of all kinds; the relationship between ostensibly unrelated sections of an M&A agreement; and transaction timeline. One focus of this episode is a threshold question in many deals: whether the buyer will buy equity or assets. This episode will, in summary form, cover many of the issues discussed in greater depth in subsequent episodes.
Part of the webinar series: M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
The basics of the loan purchase and sale process is relatively straight forward, but like any transaction, the devil is in the details. Following are eight steps involved in the purchase and sale of loan assets followed by a discussion of the most common pitfalls to avoid throughout the transaction.
REAL ESTATE LAW DUMBED DOWN 2022 - Representing the Commercial TenantFinancial Poise
A commercial tenant views a lease negotiation quite differently than does the landlord. As most leases tend to be drafted by the landlord, a tenant must begin an uphill battle to gain as many concessions as possible. This is an arduous task made easier by a full understanding of what are the most important issues for a tenant in a commercial lease transaction.
How does the financial profile of the tenant enter into the picture? Where can a tenant get hurt the most by hidden costs or unforeseen expenses? Why is “leverage” the most important concept to consider in this process? This webinar will help one understand how the tenant, generally the underdog in lease transactions, can turn the tables and become the most powerful player in the leasing game.
Part of the webinar series: REAL ESTATE LAW DUMBED DOWN 2022
See more at https://www.financialpoise.com/webinars/
Claims Trading in bankruptcy cases has advanced and grown in sophistication swiftly in recent history. Companies and their advisors should be prepared before wading into these waters. How will a claim be treated once transferred? What steps should a company acquiring a claim take to ensure the claim is paid? How should a claim be valued? What kind of documentation will be needed to properly transfer the claim? If a dispute arises regarding the claim, how should the acquiring company defend itself? For 2021, do the financial programs initiated under the CARES Act impact claims trading, and if so, how? This webinar focuses on understanding these issues and addressing best practices for advanced reorganization practitioners and advisors working on the cutting edge of bankruptcy transactions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/bankruptcy-claims-trading-2021/
IP-301 POST-GRANT REVIEW TRIALS 2022 - Things to Consider Before You FileFinancial Poise
This segment will delve into considerations that come into play when filing or responding to post-grant review proceedings. These considerations include issues of real party in interest, timing, and substantive arguments.
Part of the webinar series: IP-301 POST-GRANT REVIEW TRIALS 2022
See more at https://www.financialpoise.com/webinars/
This segment will discuss the statutory and procedural background of post-grant review proceedings. It will discuss the types of proceedings available and provide a high-level discussion of how the proceedings are conducted.
Part of the webinar series:
IP-301 POST-GRANT REVIEW TRIALS 2022
See more at https://www.financialpoise.com/webinars/
Buying, selling, or merging a company typically follows a similar set of steps from deal to deal. The amount of time each step takes varies but the order of the steps is fairly uniform because the steps follow a certain logic: before the parties share meaningful information, they should sign a confidentiality agreement (a/k/a “non-disclosure agreement,” or “NDA”); once a baseline amount of information is known by the would-be buyer, it commonly presents a letter of intent or term sheet to the target or its owner, which serves as an outline for a deal but does not necessarily bind the parties to consummate the transaction; additional due diligence and the negotiation, drafting and signing of definitive documents comes next. The parties then obtain any needed regulatory and/or contractual third party approvals; followed by closing; and finally by post-closing tasks. This webinar will discuss all these steps from a macro perspective so that you can see the forest for the trees, but does not do a deep dive into any single topic. Think of this webinar as a road map or timeline for a typical deal.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
When business owners come to the point where they simply can’t see eye to eye, success can become unfeasible. Disputes between business owners can arise from any number of issues and have varying impacts on the actual business, ranging from simple distraction to total dissolution. Depending on the business and circumstance, the means for resolution may or may not be provided for in the relevant by-laws or shareholder agreement. In this webinar, the expert panel discusses different types of shareholder disputes and corresponding remedies, including alternative dispute resolution, buy-sell agreement provisions, and share valuation considerations.
Part of the webinar series: Complex Financial Litigation 2021
See more at https://www.financialpoise.com/webinars/
Help, My Business is in Trouble! (Series: Restructuring, Insolvency & Trouble...Financial Poise
When a business becomes financially troubled, the business owner often experiences denial, paralysis, or both. Lenders commonly lose confidence and then trust in the business, as communications tend to break down, deadlines are missed, and promises are broken. Small business owners commonly have issued personal guarantees, so business failure can often lead to personal financial stress. The good news is the business and business owner usually has some options, and even some leverage. This webinar explains what a business owner should- and should not- consider and do when dealing with financial trouble. Specific topics include discussion of bankruptcy (Chapters 7 and 11); assignments for the benefit of creditors; and friendly foreclosures. This webinar provides the business owner and her advisors with an overview of various restructuring and liquidation methods, a framework for how to decide between them, and practical tips for traversing the difficult environment that is financial distress.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/help-my-business-is-in-trouble-2020/
In this webinar presenation, you will learn practical tips on drafting and understanding commercial agreements. Extract practical insights to drafting and understanding commercial agreements and learn techniques used to allocate or transfer economic risk.
When a business becomes financially troubled, the business owner often experiences denial, paralysis, or both. Lenders commonly lose confidence and then trust in the business, as communications tend to break down, deadlines are missed, and promises are broken. Small business owners commonly have issued personal guarantees, so business failure can often lead to personal financial stress. The good news is the business and business owner usually has some options, and even some leverage. This webinar explains what a business owner should- and should not- consider and do when dealing with financial trouble. Specific topics include discussion of bankruptcy (Chapters 7 and 11); assignments for the benefit of creditors; and friendly foreclosures. This webinar provides the business owner and her advisors with an overview of various restructuring and liquidation methods, a framework for how to decide between them, and practical tips for traversing the difficult environment that is financial distress.
Part of the webinar series:
RESTRUCTURING, INSOLVENCY & TROUBLED COMPANIES 2022
See more at https://www.financialpoise.com/webinars/
Structuring and Planning the M&A Transaction (Series: Private Company M&A Boo...Financial Poise
There is an old carpenters’ expression, “measure twice, cut once.” M&A work is just one of many areas in business and law where this expression resonates. Buyers and sellers, like chess players anticipating many moves in advance, should envision and plan the route to get a deal done, including anticipated detours, at the onset of the transaction.
This webinar discusses the similarities and differences between basic M&A transaction structures; purchase price payment concerns; the most common issues that arise in the early stages of M&A transactions of all kinds; the relationship between ostensibly unrelated sections of an M&A agreement; and transaction timeline. One focus of this episode is a threshold question in many deals: whether the buyer will buy equity or assets. This episode will, in summary form, cover many of the issues discussed in greater depth in subsequent episodes.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/structuring-and-planning-the-ma-transaction-2020/
When business owners come to the point where they simply can’t see eye to eye, success can become unfeasible. Disputes between business owners can arise from any number of issues and have varying impacts on the actual business, ranging from simple distraction to total dissolution. Depending on the business and circumstance, the means for resolution may or may not be provided for in the relevant by-laws or shareholder agreement. In this webinar, the expert panel discusses different types of shareholder disputes and corresponding remedies, including alternative dispute resolution, buy-sell agreement provisions, and share valuation considerations.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/resolving-shareholder-disputes-2020/
Representing an asset purchaser in a bankruptcy proceeding presents unique benefits and challenges for a professional business advisor. Companies considering acquiring assets out of bankruptcy must understand more than the simple concept of acquiring the target assets “free and clear,” under the Bankruptcy Code. As such, professionals advising these companies must understand and be able to counsel their clients regarding various matters, such as the benefits and drawbacks of serving as a “stalking horse,” asset purchaser; drafting and negotiating the terms of an asset purchase agreement and sale order with the bankrupt debtor and other parties involved in the bankruptcy proceedings; strategies for acquiring assets at auction or by alternative means; and seeking bankruptcy court approval of a proposed transaction. For 2022, professionals must also understand the impact that the economic programs enacted under the CARES Act may have on purchasing such assets. This webinar focuses on understanding these concepts and addressing best practices for advanced reorganization practitioners and advisors.
Part of the webinar series: BANKRUPTCY TRANSACTIONS - 301- ADVICE FOR THE ADVANCED PRACTITIONER 2022
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There is an old carpenters’ expression, “measure twice, cut once.” M&A work is just one of many areas in business and law where this expression resonates. Buyers and sellers, like chess players anticipating many moves in advance, should envision and plan the route to get a deal done, including anticipated detours, at the onset of the transaction.
This webinar discusses the similarities and differences between basic M&A transaction structures; purchase price payment concerns; the most common issues that arise in the early stages of M&A transactions of all kinds; the relationship between ostensibly unrelated sections of an M&A agreement; and transaction timeline. One focus of this episode is a threshold question in many deals: whether the buyer will buy equity or assets. This episode will, in summary form, cover many of the issues discussed in greater depth in subsequent episodes.
Part of the webinar series: M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
The basics of the loan purchase and sale process is relatively straight forward, but like any transaction, the devil is in the details. Following are eight steps involved in the purchase and sale of loan assets followed by a discussion of the most common pitfalls to avoid throughout the transaction.
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A commercial tenant views a lease negotiation quite differently than does the landlord. As most leases tend to be drafted by the landlord, a tenant must begin an uphill battle to gain as many concessions as possible. This is an arduous task made easier by a full understanding of what are the most important issues for a tenant in a commercial lease transaction.
How does the financial profile of the tenant enter into the picture? Where can a tenant get hurt the most by hidden costs or unforeseen expenses? Why is “leverage” the most important concept to consider in this process? This webinar will help one understand how the tenant, generally the underdog in lease transactions, can turn the tables and become the most powerful player in the leasing game.
Part of the webinar series: REAL ESTATE LAW DUMBED DOWN 2022
See more at https://www.financialpoise.com/webinars/
Claims Trading in bankruptcy cases has advanced and grown in sophistication swiftly in recent history. Companies and their advisors should be prepared before wading into these waters. How will a claim be treated once transferred? What steps should a company acquiring a claim take to ensure the claim is paid? How should a claim be valued? What kind of documentation will be needed to properly transfer the claim? If a dispute arises regarding the claim, how should the acquiring company defend itself? For 2021, do the financial programs initiated under the CARES Act impact claims trading, and if so, how? This webinar focuses on understanding these issues and addressing best practices for advanced reorganization practitioners and advisors working on the cutting edge of bankruptcy transactions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/bankruptcy-claims-trading-2021/
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Part of the webinar series: IP-301 POST-GRANT REVIEW TRIALS 2022
See more at https://www.financialpoise.com/webinars/
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Part of the webinar series: THE NUTS & BOLTS OF BANKRUPTCY LAW 2022
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Part of the webinar series: RESTRUCTURING, INSOLVENCY & TROUBLED COMPANIES 2022
See more at https://www.financialpoise.com/webinars/
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Part of the webinar series: PERSUASIVE BRIEF WRITING 2022
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With proper preparation, you can mitigate the damage caused by this unfortunate event and put your business in a position to recover. Your company may have already implemented its information security program and identified the responsible parties, including applicable outside experts, to be contacted in the event of a breach. However, now you must call up your incident response team to investigate the extent of the breach, evaluate the possible damage to your company, and determine whether you must notify your clients, customers, or the public of the breach. This webinar will help prepare you to take action when the worst happens.
Part of the webinar series:
CYBER SECURITY and DATA PRIVACY 2022
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Data is one of your business’s most valuable assets and requires protection like any other asset. How can you protect your data from unauthorized access or inadvertent disclosure?
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Part of the webinar series:
CYBERSECURITY & DATA PRIVACY 2022
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Part of the webinar series: NEWBIE LITIGATOR SCHOOL - 101 Part 3 2022
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Part of the webinar series: NEWBIE LITIGATOR SCHOOL - 101 Part 3 2022
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MARKETING TIPS FOR THE NEW (OR OLD!) BUSINESS OWNER 2022: Learn How to Do Con...Financial Poise
There's creating content; then there's creating great content; and then there's creating great content that actually gets seen by the ideal audience. Each of those layers has its own unique challenges. In this webinar episode, we share insights from a variety of highly experienced content creators. Each panelist member provides their own unique spin on how to create great content that gets seen by the intended audience. By the completion of this episode, the audience member will have a clear and actionable plan on how to create outstanding content that meets their unique marketing needs.
Part of the webinar series: MARKETING TIPS FOR THE NEW (OR OLD!) BUSINESS OWNER 2022
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CHAPTER 11 - INDUSTRY FOCUS 2022 - Focus on Oil and Gas Financial Poise
Although issues in oil and gas chapter 11 cases vary from case to case, there are, nonetheless, certain issues that tend to arise in most oil and gas cases. Among them: treatment of oil and gas leases, the payment of royalties, hedging agreements, and valuation. This webinar addresses such issues.
Part of the webinar series: CHAPTER 11 - INDUSTRY FOCUS 2022
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BUSINESS LAW REVIEW- 2022: Selling a Business Financial Poise
A Startup is the Founders’ baby - they dream it, created it and worked tirelessly to make it successful. Deciding it may be time to sell all or part is the easy part - acknowledging and addressing the financial and emotional issues can be challenging.
Negotiating with potential buyers or investors is time intensive, to say the least. Positioning a business for a value maximizing transaction requires planning. What professionals need to be engaged? How do the parties come to a valuation? What is the profile of the likely investor or buyer? These are just some of the questions this webinar addresses.
Part of the webinar series: BUSINESS LAW REVIEW- 2022
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A basic understanding of immigration law is critical to a vast array of businesses operating in today’s economy. Foreign employees and their sponsoring companies will navigate a complex maze in the attempt to achieve the desired goals of the employee maximizing their ability to provide services and value to the company. One of various determining factors as to which pathway to attempt is whether the goal is an immigrant visa (also known as a “green card”) which may ultimately allow lawful permanent residence in the United States or a non-immigrant visa. The need for foreign labor affects various industries and applies to large segments of skilled, unskilled and semi-skilled workers in jobs ranging from farm to seasonal to high-tech. This webinar explains what businesses need to know in the current environment as well as how political and globalization issues will affect immigration laws going forward.
Part of the webinar series:
BUSINESS LAW REVIEW- 2022
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NEWBIE LITIGATOR SCHOOL - Part I 2022: Working With Experts Financial Poise
Expert witnesses are an integral part of modern commercial litigation. They can be used for everything from calculating damages to explaining software workflows to establishing industry standards. This webinar begins with an exploration of the common types of cases that call for use of expert testimony. From there, we discuss the rules governing experts, including expert disclosures, discovery, and expert depositions. We also discuss the Daubert standard for excluding expert testimony, and discuss how a successful Daubert motion may be brought. This hour will help you figure out when and how to hire your own expert, and will give you some ideas on how to challenge your opponent’s expert when the time comes.
Part of the webinar series:
NEWBIE LITIGATOR SCHOOL - Part I 2022
See more at https://www.financialpoise.com/webinars/
Executive compensation continues its movement towards performance pay as the standard. Compensation structures and proxy disclosures are more and more complex. Investors and proxy advisors continue to increase influence on compensation issues. This webinar examines executive compensation, including equity-based compensation plans and executive employment and severance agreements. The importance of disclosure, alignment of risk, and metrics is also examined. Practical guidance on pay-for-performance and supplemental pay definitions is provided. The panelists discuss the effect of the Dodd-Frank Act on executive compensation, including SEC regulations. Exchange rules are compared to applicable federal law. Best practices regarding executive compensation committees and regulatory requirements for those committees are examined. Shareholder advisory groups promulgate executive compensation related advisory policies for their institutional shareholder clients annually and these policies are also discussed. Issues regarding board composition and leadership structure issues are discussed in relation to executive compensation.
Part of the webinar series:
CORPORATE REGULATORY COMPLIANCE BOOT CAMP 2022 - PART 2
See more at https://www.financialpoise.com/webinars/
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Part of the webinar series: CORPORATE REGULATORY COMPLIANCE BOOT CAMP 2022 - PART 2
See more at https://www.financialpoise.com/webinars/
The deal is complete, and the parties have finished the hard work. Or have they? Integration planning turns to execution as people, process, and technology are combined once the deal is legally closed. The buyer will need to consider the purchased business or assets from the standpoint of employees, IT, customers, suppliers, and a multitude of other areas. In addition, numerous post-closing legal issues may arise, including purchase price adjustments, breaches of representations and warranties, enforcement of key negative employment-related covenants and restrictive covenants, collection of pre-closing accounts receivable, and true-ups of final financials. This episode guides listeners through the process, timing, and issues which most commonly arise after the closing of deals.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
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Part of the webinar series: Crowdfunding 2022
See more at https://www.financialpoise.com/webinars/
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Part of the webinar series: Crowdfunding 2022
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Synthetic fiber production is a fascinating and complex field that blends chemistry, engineering, and environmental science. By understanding these aspects, students can gain a comprehensive view of synthetic fiber production, its impact on society and the environment, and the potential for future innovations. Synthetic fibers play a crucial role in modern society, impacting various aspects of daily life, industry, and the environment. ynthetic fibers are integral to modern life, offering a range of benefits from cost-effectiveness and versatility to innovative applications and performance characteristics. While they pose environmental challenges, ongoing research and development aim to create more sustainable and eco-friendly alternatives. Understanding the importance of synthetic fibers helps in appreciating their role in the economy, industry, and daily life, while also emphasizing the need for sustainable practices and innovation.
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The people of Punjab felt alienated from main stream due to denial of their just demands during a long democratic struggle since independence. As it happen all over the word, it led to militant struggle with great loss of lives of military, police and civilian personnel. Killing of Indira Gandhi and massacre of innocent Sikhs in Delhi and other India cities was also associated with this movement.
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Negotiating an M&A Deal
1.
2. 2
Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.
3.
4. Disclaimer
The material in this webinar is for informational purposes only. It should not be considered
legal, financial or other professional advice. You should consult with an attorney or other
appropriate professional to determine what may be best for your individual needs. While
Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate,
Financial Poise™ makes no guaranty in this regard.
4
5. Meet the Faculty
MODERATOR:
Robert Londin - Jaspan Schlesinger LLP
PANELISTS:
Jacqueline A. Brooks – Saul, Ewing Arnstein & Lehr LLP
Bob Dekker – Balmoral Advisors
Tracey Figurelli – Andra Partners, LLC
5
6. About This Webinar – Negotiating an M&A Deal
Negotiating the terms of a buy/sell agreement (i.e. an M&A transaction) requires both
knowledge of the law and the “market.” This webinar involves the panelists engaging in
mock negotiations of a variety of deal points which commonly arise in M&A transactions.
Listen in as buyer’s and seller’s counsel haggle over representations, warranties,
indemnification, purchase price payment mechanisms, and a host of other hotly negotiated
terms.
6
7. About This Series – Private Company M&A Boot Camp
This series features leading M&A attorneys and other deal professionals speaking about
private company M&A in roughly chronological order, guiding the audience through a
conversation that spans from deal origination, the LOI (letter-of-intent) or term sheet, due
diligence, document drafting and negotiation, closing, and post-closing. Issues addressed
include tax planning and structure; corporate governance; negotiating deal points and
common pitfalls and challenges; closing conditions; representations and warranties;
indemnification provisions; earn-outs; restrictive covenants; antitrust; intellectual property; and
employment. While many of the topics covered apply also to public company M&A, the focus
of this webinar series is on M&A involving a privately owned company or business.
Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and
executives without much background in these areas, yet is of primary value to attorneys, accountants, and other
seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to
entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that
participants will enhance their knowledge of this area whether they attend one, some, or all episodes.
7
8. Episodes in this Series
#1: Structuring and Planning the M&A Transaction
Premiere date: 8/24/21
#2: Key Provisions in M&A Agreements
Premiere date: 9/21/21
#3: The M&A Process
Premiere date: 10/19/21
#4: Post-Closing Issues: Integration & Potential Buyer/Seller Disputes
Premiere date: 11/16/21
#5: Negotiating an M&A Deal
Premiere date: 12/14/21
8
11. A Couple of Quick Caveats
• Key provisions will vary from transaction to transaction. What we will be discussing today
is not meant to be an exhaustive list, rather a survey of provisions of general importance to
both parties
• There are important distinctions between stock transactions, asset purchases, and
mergers (and even then, among different types of mergers). You should assume, though, for
purposes of our presentation today, that our conversation will apply to all types of these
transactions unless otherwise stated
11
12. Closing Conditions, Generally
• Closing conditions, like they sound, are an obligation (which can be waived) for each
party to the other party’s obligation to close the transaction
• Closing conditions will only be of importance in a two step transaction, that is, when the
signing and closing are not simultaneous
• Closing conditions are more likely to put an onus on Sellers than Buyers
• Many of the conditions should be automatic, such as delivery and execution of ancillary
agreements and corporate records and are firmly in the control of the party with the obligation
• Others, such as certificates of good standing, certified copies of articles or lien searches,
require third parties, but should be things about which the Seller can feel confident; and some
are outside the party’s control (for example, Landlord consents)
12
13. Open-Ended Closing Conditions
• Gives a party, usually the Buyer, an “out” for something which may be amorphous and/or
small
• Examples are Buyer being satisfied with its due diligence in its sole discretion, Seller’s
representations and warranties being true and complete in all respects, no material adverse
change in Seller’s operations, and Buyer receiving financing for the transaction
• Sellers may not be able to negotiate away these conditions, but they can push back
against the number and scope of them, as discussed in the following slides.
13
14. The Due Diligence Closing Condition
• In its most extreme form, this closing condition permits a buyer to be able to walk away
from closing the transaction without recourse for the seller if the buyer is not satisfied with the
result of its due diligence examination of seller's operations in buyer's sole and absolute
discretion.
• Buyer's position: It has an unfettered right to examine seller's records and to walk away if
not satisfied right up to the closing.
• Seller's response: You had the opportunity to do this up until the agreement was signed;
if you failed to do so, it's now your at your risk. You have other remedies for anything which
arises between the signing and closing (as discussed in the material adverse change (MAC)
slides).
• Seller's position is generally more compelling, but are there possible compromises?
14
15. The Due Diligence Closing Condition
• The parties could change "sole and absolute" to "reasonable". While this is better for
seller and gives it possible recourse if buyer tries to walk away, the standard is vague and
creates vulnerability for both parties.
• The parties can limit this right to matters which arose between signing and closing and/or
which the information was not provided to buyer provided to signing. This significantly
narrows the range of what material buyer can use to call of the transaction, but may create
ambiguity in how it interacts with the MAC out.
• The parties can permit the buyer to walk away but stipulate some type of liquidated
damages remedy for seller if buyer does so.
15
16. The Financing Closing Condition
• When some or all of the purchase price seller is to receive is in cash payable at the
closing, the buyer may need to finance this through a third party, most typically a commercial
lender.
• Buyer's position: unless it can procure such financing on commercially reasonable terms
on terms acceptable to it in its sole and absolute discretion, it is under no obligation to close
the transaction and faces no liability for not doing so.
• Buyer is highly unlikely to be able to finalize financing until its agreement with seller is
actually signed.
16
17. The Financing Closing Condition
• Seller may be a bit more limited here than in regard to due diligence as buyer may not be
able to close without financing, so compelling closing may not be an option.
• Seller has the options of reasonableness or liquidated damages as discussed above in
the context of due diligence.
• Under any circumstances, even if buyer cannot get a firm commitment until after the
agreement with seller is signed, seller should compel buyer to start this process, and apprise
it of the results, prior to that time so it can gauge the likelihood of buyer's success.
17
18. The Material Adverse Change (or Effect) Closing
Condition
• This condition provides that if seller suffers a material change in its operations,
conditions, etc. after the signing, buyer will not be required to close the transaction.
• This is a logical provision in many transactions, particularly those in which a substantial
amount of time may pass between the signing and closing and which the buyer could end up
with a substantially different, and less advantageous, transaction than it envisioned.
• But this condition can be problematic for both parties because the concept of what
constitutes a MAC is highly negotiated.
18
19. The MAC Closing Condition
• What is "material adverse" must be considered in light of the size of the parties and
transaction.
• Subject to pro-buyer recent Akorn v. Fresnius Kabi decision, case law on this topic is
scant but generally pro seller (IBP v. Tyson; Hexion v. Huntsman; but see Osram Sylvania v.
Townsend Ventures).
• In general, it's reasonable to have some type of MAC clause but probably to limit in the
event of force majeure and perhaps even overall economic or sectoral events; be mindful of
whether a target business’ “prospects” affect whether a MAC occurs.
19
20. The MAC Closing Condition
• More individually, for the certainty of both parties, the parties might wish to define by
means of a percentage of transaction value and/or by certain actions, such as loss of a key
customer, adverse outcome in a lawsuit, patent filing, etc.
• Another possibility is to require the buyer to close but to give it indemnification rights for
any loss it suffers relating to the MAC, or with the acquired business.
• Be mindful of the negotiation of what constitutes an indemnifiable “loss”; particularly in
respect of consequential damages, enterprise value and multiples of earnings.
20
21. Post Closing Covenants
• Post-closing covenants require the action of one party, usually the Seller, to act in certain
ways to assist the Buyer in transitioning the business it has purchased and/or to act or refrain
from acting to help the Buyer preserve the value in the business it purchased
• Many of these actions are non-controversial, such the Seller’s assistance in transitioning
customers, suppliers or employees or the parties working together on tax filings
• Most contentious of the post-closing covenants are usually the covenant not to compete
and the related non-solicitation covenants
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22. Covenants Not to Compete
• Seller (in asset purchase transactions) and/or its shareholders (in stock purchase
transactions and mergers) in a non-compete agreement agree not to provide services to or
act as investors in enterprises which compete with the Buyer
• May be placed in purchase agreement or in standalone document
• Very much a creature of state law (see choice of law slide)
• Enforceability against small shareholders or non-shareholding employees needs to be
considered closely; misuse of covenant could subject Buyer to damages for restraint of trade
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23. Covenants Not to Compete
• Buyers’ position: I need all seller employees with material knowledge of seller's business
and operations not to compete against the acquired business anywhere seller has done or
contemplates doing business for as long as possible so that I can get the benefit of my
bargain by not having people with critical knowledge use it against the acquired business.
• Sellers’ position: I understand this need for key, large shareholders but even then, it
should be as short and narrow as possible. For non-shareholder/selling employees which are
“key” to Buyer, Buyer should offer those persons employment agreements.
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24. Covenants Not to Compete
• The internet has complicated geographical restrictions by making it easier for many kinds
of enterprises to do business anywhere.
• If seller is taking back a promissory note, consider whether the covenant should be
terminated if buyer defaults on the note.
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25. Non-Solicitation Agreements
• Non-solicitation agreements or covenants are the slightly less obtrusive cousin to non-
compete agreements
• Non-solicitation agreements generally limit or prevent the selling company and/or its
shareholders from seeking business from the selling company’s customers and recruiting the
selling company’s employees
• Also very sensitive to state law considerations
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26. Key Boilerplate Provisions
• Found at the end of the agreement
• Most are non-controversial and provide common sense rules for interpreting the contract
(e.g., entire agreement, severability, etc.)
26
27. Choice of Law
• Choice of law determines the substantive law to be used for dispute resolution
• While the laws of states are much more similar than different, there may be differences
on interpretation of key provisions, such as disputes between a company and
shareholders or between a company and its employees
• Parties sometimes choose the law of a neutral forum such as Delaware, with a well-
established and well-known body of corporate law
• Some matters, particularly relating to employees, may not permit a contract’s venue
provision to be enforced; instead the parties may be compelled by where the employee
is primarily based
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28. Venue
• Venue is the physical locale where jurisdiction over disputes between the parties is to be
resolved
• In transactions in which parties are from different states (or perhaps even more so,
different countries), each party will generally want its home state venue to be the place
where disputes are resolved for reasons of familiarity, advantage and cost.
• For a Seller, designating its home state can act as a de facto second basket, since the
Buyer may not want to incur the cost and time of bringing a small action in a foreign
setting
• Would a neutral forum without ties to the transaction accept jurisdiction?
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29. Manner of Dispute Resolution
• Consider adding an initial provision mandating contractual mediation
• Arbitration (e.g., AAA or JAMS) often used because of perceptions of confidentiality,
predictability and speed
• Litigation, either with or without compulsory mediation
• Waiver of right to jury trial
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30. About The Faculty
Robert Londin - rlondin@jaspanllp.com
A partner in his firm’s Corporate and Commercial Transactions Group, Mr. Londin counsels
numerous companies in connection with their mergers and acquisitions (both strategic and
financial), financing needs and the execution of their business plans; financial concerns in
capital markets transactions; emerging-growth companies; seed and venture capital clients in
connection with the formation of their investment vehicles and making of their portfolio
company investments; borrowers and lenders in secured financings; and companies and
highly compensated executives in connection with their compensation and separation
arrangements. Rob serves as general counsel to many clients and their senior executives and
advisory boards. This general corporate representation covers day-to-day legal issues as well
as strategic planning and business development extending to acquisition and financing
concerns. He also represents technology and emerging-growth clients in connection with their
strategic alliances, technology licensing, mergers and acquisitions, corporate finance, venture
capital, banking transactions and general corporate needs.
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31. About The Faculty
Jacqueline Brooks - jacqueline.brooks@saul.com
Jacqueline Allen Brooks concentrates her practice in general business and commercial law. She
counsels clients in mergers and acquisitions, purchases and sales of businesses, commercial finance,
private offerings of debt and equity securities, and life science transactions, and shareholder derivative
matters, including shareholder demand responses and special committee issues. Jacqueline has
experience representing public companies, privately owned and managed companies, nonprofit
organizations and start-up companies and provides general counsel to these organizations regarding
corporate matters.
Prior to joining Saul Ewing Arnstein & Lehr, Jacqueline participated in Washington University School of
Law's D.C. Clinic, through which she was an intern to the United States House Judiciary Committee. In
this capacity, she drafted legal memoranda to assist Congressman John Conyers, Jr. and the
Congressman's legislative assistants at Judiciary Committee hearings and briefings.
To read more about Jacqueline, visit:
https://www.financialpoise.com/financialpoisewebinars/faculty/jacqueline-brooks/
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32. About The Faculty
Bob Dekker - bdekker@balmoraladvisors.com
Bob is a career capital markets professional and operating executive with extensive experience working with companies ranging
from emerging growth to large, publicly traded enterprises. He specializes in developing and implementing creative capital
formation strategies and advising clients on alternative approaches for maximizing shareholder value in connection with merger
and acquisition activities. Bob has been an advisor to a wide assortment of public and private companies in the food and
consumer products industries including independent and franchise restaurants, food retailers and food packaging companies.
Prior to joining Balmoral, Bob co-founded Insight Advisory Partners, a boutique investment banking firm based in Chicago
focused on the food and beverage sector. Previously he was a senior banker with ABN AMRO, Inc. and its predecessor, The
Chicago Corporation, where he managed the firm’s private placement activities in North America. Bob began his career with
Prescott, Ball & Turben, Inc. (an affiliate of Kemper Insurance Company) in Cleveland, OH. During his investment banking
career, he has arranged over $2 billion of private market transactions.
Bob is a member of the Association for Corporate Growth where he co-chairs the committee responsible for hosting ACG’s
Annual Food Conference. For the past five years, he has served as a Super Mentor to several emerging growth food companies
that have been accepted into the Good Food Business Accelerator (part of the 1871 incubator) mentoring program. He is also a
faculty member of Financial Poise, a Web-based information platform that provides financial and legal education to individual
investors and private business owners. Bob holds a BA in Economics from Denison University.
Bob is a registered principal with Bridge Capital Securities (62, 63, 79).
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33. About The Faculty
Tracey Figurelli - tfigurelli@andrapartners.com
Tracey is a is a buy-side M&A advisor at Andra Partners, supporting thematic private equity clients with investment
fund sizes ranging from $100M - $12B+. Andra Partners aligns the targeted platform and add-on acquisition interests
of financial and strategic acquirers with the management objectives of middle market companies. Tracey has over 20
years of experience in professional services, with specific expertise in business transformation, finance and
technology.
At RGP Consulting, a global, publicly traded consulting firm, she was the EVP of Digital Innovation & Integrated
Solutions and led digital transformation efforts including identifying target companies for acquisition. She architected
the M&A strategic plan and post-merger integration framework for RGP, and also launched a service offering that
generated $70M in new annual revenue. Prior to that role at RGP Tracey was the Global Managing Director –
Information Management, Managing Director, and an Information Management Consultant. She was also previously a
Director of Corporate Financial Operations & Systems at Prudential Financial.
Tracey is an active Board Member for VenturesATL, in addition to sitting on Advisory Boards of multiple technology
firms guiding them on their growth strategies, including M&A transactions.
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34. Questions or Comments?
If you have any questions about this webinar that you did not get to ask during the live
premiere, or if you are watching this webinar On Demand, please do not hesitate to email us
at info@financialpoise.com with any questions or comments you may have. Please include
the name of the webinar in your email and we will do our best to provide a timely response.
IMPORTANT NOTE: The material in this presentation is for general educational purposes
only. It has been prepared primarily for attorneys and accountants for use in the pursuit of
their continuing legal education and continuing professional education.
34
35. About Financial Poise
35
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