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
David W. Pollak
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
Audra D. Cohen
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
Paul J. Shim
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
Ron E. Deutsch
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
James T. Chudy
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
J. Mark Poerio
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
Sharon B. McCullen
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
David W. Pollak, Patrick F. Rice
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
David W. Pollak
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.)
Kevin M. Schmidt
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
Alyssa A. Grikscheit
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
Catherine J. Dargan
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
~ Former Head of Investment Banking and Senior Managing Director, Oppenheimer & Co. Inc.
New York City Seminar Location
PLI New York Center, 810 Seventh Avenue at 53rd Street (21st floor), New York, New York 10019. Message Center, program days only: (212) 824-5733.
New York City Hotel Accommodations
The New York Hilton & Towers, 1335 Avenue of the Americas, New York, NY 10019. 1 block from PLI Center. Reservations 1-800-HILTONS or, 1-877-NYC-HILT. Please mention that you are booking a room under the Practising Law Institute Corporate rate and the Client File # is N495741. Reservations on line at www.hilton.com and enter the same Client File # in the Corporate ID # field to access Practising Law Institute rates.
The Warwick New York Hotel, 65 West 54th Street New York, NY 10019. 1 block from PLI Center. Reservations 800-223-4099 or, hotel direct 212-247-2700. Please mention that you are booking a room under the Practising Law Institute Corporate rate. Reservations on line at www.warwickhotelny.com Click reservations in menu bar on left. Select desired dates. In 'Special Rates' drop down window select Corporate Rate. In 'Rate Code' enter PLIN. Click search and select desired room type and rate plan. Or, you may email reservation requests to: firstname.lastname@example.org.
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