Why you should attend
At this perennial favorite, our experienced faculty will walk you through all of the steps associated with acquiring and selling a privately held company, whether it is a large independent corporation, a division or subsidiary of a large public company, or a smaller venture capital-backed or family-owned entrepreneurial enterprise. You will learn about the special issues that apply when a private equity firm is the buyer or owns the target company, and about the techniques and strategies that are essential to successful negotiations.
You will also gain an understanding of the key tax, employee benefits, and intellectual property issues that arise and how to address them. Plus you will learn about special diligence concerns involving international deals, including FCPA, AML, tax and labor issues.
What you will learn
- Analyze the terms of an acquisition agreement
- Develop successful negotiation strategies
- Use letters of intent to maximize strategic advantage
- Structure and negotiate earn-outs and critical risk allocation provisions
- Spot and deal with the key issues that arise in non-corporate law areas, such as:
- Employee benefits
- Intellectual property
- Cope with the special problems associated with acquisitions of divisions or subsidiaries
- Understand the fiduciary duties of directors and majority shareholders in a sale transaction
- Understand the special issues relating to financial sponsors
- Recognize ethical issues that arise during the negotiation and documentation of transactions
- Avoid common drafting pitfalls when non-U.S. laws govern part or all of a deal
Who should attend
Day One: 9:00 a.m. - 5:00 p.m.
Morning Session: 9:00 a.m. - 12:30 p.m.
9:00 Program Overview
Brian C. Miner
9:15 General Business Considerations
Brief summary of the financial and business considerations applicable to the acquisition or sale of a privately held company, including:
- Valuation analysis
- The art and science of the sale process
- The role of a financial adviser and financing issues
10:15 Letters of Intent and Other Preliminary Considerations
- The elements and purposes of a letter of intent
- Advantages and disadvantages in using a letter of intent
- Impact on negotiating strategy and bargaining leverage
- Early deal considerations and planning issues
Michael N. Peterson
11:15 Networking Break
11:30 Dealing with Financial Sponsors
A review of the key issues that arise when a private equity firm, hedge fund, sovereign wealth fund or other financial sponsor is the buyer or seller of the privately held company, including:
- Financing commitments
- Capital structure
- Management equity participation
- The effects of a finite fund life on indemnification
Bradley S. Schmarak
12:30 Lunch Break
Afternoon Session: 1:45 p.m. - 5:00 p.m.
1:45 Fiduciary Duties of Directors and Majority Shareholders
A discussion of the duty of controlling and majority stockholders to minority holders in:
- Business combinations/sales/mergers
- Squeeze outs
- Transactions with affiliated entities
Elizabeth Clough Kitslaar
A. Tax Considerations
- Taxable versus tax-free transactions
- Alternative forms of tax-free reorganization
- Tax basis in assets acquired
- Deferred consideration and incentive compensation
- Imputed interest rules
Jeffrey C. Wagner
3:15 Networking Break
3:30 Specialty Areas (Continued)
B. Employee Benefits
- Identifying ERISA liabilities
- Integrating seller’s and buyer’s plans
- Transferring plan assets
- Utilizing surplus plan assets; ESOPs
Philip L. Mowery
C. Intellectual Property
Review of principal intellectual property issues:
- IP diligence
- IP representations and warranties
- Noninfringment guarantees
- Effect of the transaction
- Adverse effects on acquiror’s IP
- Sale of a division, spin-off, etc.
- Signing and closing issues
Jeffery S. Norman, P.C.
Day Two: 9:00 a.m. - 5:00 p.m.
Morning Session: 9:00 a.m. - 12:15 p.m.
9:00 Mock Negotiation and Analysis of Form of Acquisition Agreement
- Analysis of form of agreement and principal sections from both the buyer’s and seller’s perspectives
- Representations and warranties
- Conduct of business prior to closing
- Conditions precedent to closing
- Seller’s disclosure schedules
- Key differences between stock and assets purchase agreements
Brian C. Miner, Robert F. Wall
11:00 Networking Break
11:15 Mock Negotiation and Analysis of Form of Acquisition Agreement (Continued)
12:15 Lunch Break
Afternoon Session: 1:45 p.m. - 5:00 p.m.
Techniques and issues in negotiating indemnification provisions:
- Partial indemnification
- Survival of warranties
- Control of defense of claims
- Director protective provisions
- Exclusive or nonexclusive remedy
B. Special Issues Involved in Acquiring Divisions or Subsidiaries of Larger Companies
The key issues to address when acquiring or selling divisions or subsidiaries of larger companies, including:
- The need for separate financial statements
- Allocating shared assets, facilities and services
- Identifying parent company’s role in division or subsidiary business’s success (including recruiting key executives, generating business, financing growth, etc.)
Nancy Laethem Stern
3:15 Networking Break
A. International Aspects
- Special diligence concerns, including FCPA, AML, tax and labor issues
- Structuring to acquire (and perhaps later sell) a non-U.S. company
- Common drafting pitfalls when non-U.S. laws govern part or all of a deal
- Dispute settlement alternatives in the cross-border context
- Execution formalities in certain jurisdictions and why they matter
Barbara L. Borden
B. Structuring and Negotiating Earn-Outs
The problems that arise in the context of structuring and drafting contingent consideration, or earn-out, arrangements in a transaction
- Accounting and tax issues
- Effect on indemnification
C. Ethics in Negotiating and Documenting Transactions
- Understanding who the client is and addressing recurring conflicts of interest
- Candor in negotiations: advocacy, deceit and fairness
- Disclosing confidences and secrets
- Inadvertently disclosed information
- Communicating with represented parties
- Recording phone calls or meetings
William R. Kucera
Chicago Seminar Location
University of Chicago Gleacher Center, 450 N. Cityfront Plaza Drive, Chicago, Il 60611. (312) 464-8787.
Chicago Hotel Accommodations
Intercontinental Hotel Chicago, 505 North Michigan Avenue, Chicago, IL 60611. 800-628-2112. Please contact directly in order to receive the preferred rate. When calling, please mention PLI and the name of the program you are attending.
Sheraton Chicago Hotel & Towers, 301 E. North Water Street, Chicago, IL 60611. (312) 464-1000.
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Special Note: In New York, newly admitted attorneys may receive CLE credit only for attendance at "transitional" programs during their first two years of admission to the Bar. Non-traditional course formats such as on-demand web programs or recorded items, are not acceptable for CLE credit. Experienced attorneys may choose to attend and receive CLE credit for either a transitional course or for one geared to experienced attorneys. All product types, including on-demand web programs and recorded items, are approved for experienced attorneys.
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