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. To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/post-closing-issues-integration-potential-buyer-seller-disputes-2021/

2. 2
Practical and entertaining education for
attorneys, accountants, business owners and
executives, and investors.

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:
Tracey Figurelli – Andra Partners, LLC
John Levitske – Ankura
Mark Trembacki – Busey Bank
5

6. About This Webinar – Post-Closing Issues:
Integration & Potential Buyer/Seller Disputes
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.
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

9. Episode #4
Post-Closing Issues: Integration & Potential Buyer/Seller Disputes
9

10. Post-Acquisition Integration = Merging operations,
finances, culture, etc. of acquired business with Buyer
10

11. Goal=Synergy
11

12. Asset or Equity Deal
• Asset Deal
✓ Does Buyer get Seller’s name?
✓ Who collects Seller’s A/R?
✓ Third party consents
✓ Handling of any pandemic PPP loans
12

13. Asset or Equity Deal
• Equity Deal (other than if merger)
✓ Does Target entity remain?
o If not, issues related to transferring Target’s employees to benefits plans, stock
option plans, result
✓ Third party consents
✓ Handling of any pandemic PPP loans
13

14. General Principles
• Direction from the top
• Begins pre-close
• Move fast before day-to-day business issues overshadow integration efforts
• Integration Manager (role should ideally start during due diligence)
• Role clarity
• Don’t permit bad behavior
• Consider when to inform target company employees of acquisition (adverse attrition and
confidentiality concerns)
14

15. The “First 100 Days”
• Make decisions & set priorities
• Communication is key
• What communications will Seller/Target permit prior to closing?
✓ FAQs
✓ What stays the same?
✓ What changes?
15

16. The Next 18 Months
• Implement decisions based on priorities
• Integration teams
16

17. Substantive Areas
• IT
• Branding
• Risk management/insurance
• Legal/compliance
17

18. Measuring Success Short Term
• Usable IT system
• Motivation/engagement
• Knowledge transfer
18

19. Measuring Success Longer Term
• Retention of…
✓ Employees
✓ Customers
✓ Suppliers
✓ Physical facilities/workforce economies of scale
19

20. Imperatives for PMI Success According to the Boston
Consulting Group
• Define first principles- the objectives and philosophy of the merger- and design the PMI
to reflect them
• Manage the PMI as a discrete process, separate from the day-to-day running of the
business
• Organize PMI teams to mirror the value drivers of the merger- and staff with the best
people
• Insist on senior leadership that is active, committed, and highly visible
20

21. Imperatives for PMI Success According to the Boston
Consulting Group
• Maximize cost synergies but plan for revenue synergies as well
• Define explicit cost and revenue targets and revisit them continually throughout the PMI
• Retain current customers by making them an integral part of the PMI process
• Manage talent- by selecting, retaining, and developing the best people for the new
organization
21

22. Imperatives for PMI Success According to the Boston
Consulting Group
• Design a workable organization structure for the combined company
• Recognize that PMI is an exercise in change management
• Assume that it is better to have “too much” communication than too little
• Manage the integration of organization culture with the same discipline and rigor as the
operational and financial integration
22

23. Earn-Out Issues?
• Is there an earn-out in place, and if so, does it put any constraints on buyer in terms of
hiring and firing employees, amount of CapEx, etc.?
• Does the main acquisition agreement provide for any Buyer covenants with respect to the
earn-out (good faith and fair dealing; seller consent rights; limitations/adjustments based on
post-closing for other acquisitions or dispositions)
23

24. Collection of Accounts Receivable (Generally Only
Applicable in an Asset Purchase)
• Who collects outstanding A/R as between Buyer and Seller?
• Are there restrictions in how collected A/R is to be accounted for?
• Additional payment to Seller as opposed to indemnification right for Buyer (and if so,
subject to cap and basket)?
24

25. Post-Closing True-Up / Balance Sheet Adjustment
• Who does it and when?
• Right to contest; dispute resolution
• Additional payment to Seller as opposed to indemnification right for Buyer (and if so,
subject to cap and basket)?
25

26. “Positive” Employment – and Consulting-Related
Responsibilities
• Employment and consulting agreements
• Difficulty of getting primary shareholders to remain engaged post-transaction?
• Non-employment and consulting transition services, such as any assignments, customer
and supplier introductions not done pre-closing, etc.
26

27. “Negative” Employment and Consulting Restrictions
• Covenants not to compete
• Restrictions on soliciting employees, customers and business relations
• Enforceability concerns?
27

28. Breaches of Representations and Warranties
• Anything in breach at the closing, and if so, is a suit cut off?
• How long do the representations and warranties survive after closing?
• Are there non-monetary limitations on indemnification claims (for example, obligation to
mitigate damages or pursue insurance)?
• Monetary limits (cap and basket)
28

29. Breaches of Representations and Warranties
• Offset rights for Seller for Buyer’s insurance and tax recoveries
• Existing insurance (“occurrence”), tail or express M&A insurance?
• Analysis of tax benefit (loss) to otherwise indemnifiable losses
• Any reason Buyer might want to not seek indemnification even if it was or might be so
entitled?
29

30. About the Faculty
30

31. 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.
31

32. 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.
32

33. About The Faculty
John Levitske - John.Levitske@Ankura.com
John Levitske, CPA/ABV/CFF/CGMA, ASA, CFA, CFLC, CIRA, MBA JD serves as a
business valuation, forensic accounting and damages expert witness, arbitrator, and advisor.
He provides business valuation, forensic accounting, purchase price analysis, damage
quantification, and dispute resolution services in complex commercial situations. He testifies
as an independent expert witness in disputes, both domestic litigation and international
arbitration, regarding issues of valuation, finance, accounting (e.g., GAAP) or damages. He
also acts as a neutral expert determiner or neutral arbitrator and advises clients in mediations
and negotiations. He is frequently consulted regarding business disputes, shareholder
disputes, M&A transaction disputes and bankruptcy.
To read more, go to https://www.financialpoise.com/webinar-faculty/john-levitske/
33

34. About The Faculty
Mark Trembacki – marktrembacki@gmail.com
Mark Trembacki is Executive Vice President and Chief Strategy Officer of Busey Bank where he leads
strategic planning and execution, acquisition integration and the overall evolution of this rapidly growing
financial services company. Prior to joining Busey, Mark founded Risk Management Levers, Inc., a consulting
firm focused on strategy, risk management, acquisition integration, and change management leveraging his
deep experience from leadership roles at BMO Financial Group, including U.S. subsidiary BMO Harris Bank.
Mark has an MBA in Finance from The University of Chicago Booth School of Business, a BS in Accounting
from The University of Illinois at Urbana-Champaign, and is a CPA. He is a qualified SEC Financial Expert, a
National Association of Corporate Directors (NACD) Governance Fellow, and earned NACD’s CERT
Certificate in Cybersecurity Oversight from Carnegie Mellon University’s Software Engineering Institute. Mark
also completed a Cyber Security Management Graduate Certificate from the University of Virginia.
Mark serves as the Board Chair at the DuPage Children’s Museum and Treasurer of the Chicago Historical
Society (Chicago History Museum) and was part of CEO Search Committees at both organizations in 2019
and 2020. He has also been an adjunct professor at the University of Illinois Urbana-Champaign teaching
Enterprise Risk Management in the Masters of Finance program.
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35. 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.
35

36. About Financial Poise
36
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