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 employee benefits, labor and employment, 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
- Labor and employment
- 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
Richard A. Juarez
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
Allison Leopold Tilley
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
Brian C. Miner
12:30
Lunch Break
Afternoon Session: 1:45 p.m. - 5:00 p.m.
1:45
Specialty Areas
A. International Aspects [45 minutes]
- 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
Catharina Y. Min
B. Intellectual Property [45 minutes]
A discussion of issues specific to intellectual property:
- Preliminary steps – the IP audit
- Conducting IP diligence
- Issues based on the type of IP
- Representations and warranties
- Covenants and closing conditions
- Sale of a division, spin-off, etc.
- Closing and post-closing issues
Joseph Yang
3:15
Networking Break
3:30
Specialty Areas (Continued)
C. Labor and Employment [45 minutes]
- Key employment/labor differences in stock vs. asset transactions
- Business restructuring: discrimination issues, severance pay, and waivers/releases
- Contracts, non-compete agreements, and employee benefits
- Union issues
- WARN notice issues
- Risks/Liabilities – what to watch for
Theodora R. Lee
D. Employee Benefits [
45 minutes]
- Identifying ERISA liabilities
- Integrating seller’s and buyer’s plans
- Transferring plan assets
- Utilizing surplus plan assets; ESOPs
Michael T. Frank
5:00
Adjourn
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
Diane Holt Frankle, Brian C. Miner
11:00
Networking Break
11:15
Mock Negotiation and Analysis of Form of Acquisition Agreement (Continued)
12:15
Lunch Break
Afternoon Session: 1:30 p.m. - 5:00 p.m.
1:30
A. Indemnification [45 minutes]
Techniques and issues in negotiating indemnification provisions:
- “Baskets”
- “Caps”
- Partial indemnification
- “Sandbagging”
- Survival of warranties
- Control of defense of claims
- Director protective provisions
- Exclusive or nonexclusive remedy
- Symmetry
Tali Sealman
B. Special Issues Involved in Acquiring Divisions or Subsidiaries of Larger Companies [
45 minutes]
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 the parent company’s role in division or subsidiary business’s success (including recruiting key executives, generating business, financing growth, etc.)
- Insurance
Jeffrey A. Le Sage
3:00
Networking Break
3:15
A. Structuring and Negotiating Earn-Outs [30 minutes]
The problems that arise in the context of structuring and drafting contingent consideration, or earn-out, arrangements in a transaction
- Formulas
- Disputes
- Accounting and tax issues
- Effect on indemnification
Sarah P. Payne
B. Ethics in Negotiating and Documenting Transactions [30 minutes]
- 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
Eva H. Davis
C. Fiduciary Duties of Directors and Majority Shareholders [45 minutes]
A discussion of the duty of controlling and majority stockholders to minority holders in:
- Business combinations/sales/mergers
- Squeeze-outs
- Transactions with affiliated entities
Eva H. Davis
5:00
Adjourn
Co-Chair(s)
Speaker(s)
Program Attorney(s)
San Francisco Seminar Location
PLI California Center, 685 Market Street, San Francisco, California 94105. (415) 498-2800
San Francisco Hotel Accommodations
The Palace Hotel, 2 New Montgomery Street, San Francisco, California 94105. Call (800) 917-7456 seven days a week from 6:00 am to 12:00 am (PDT) and mention you are attending this program at Practising Law Institute to receive the preferred rate. For online reservations, go to www.sfpalace.com/pli to receive the preferred rate.
Due to high demand we recommend reserving hotel rooms as early as possible.
PLI's live programs are approved in all states that require mandatory continuing legal education for attorneys, except Arizona. Please be sure to check with your state for details.
Please check the CLE Calculator above each product description for CLE information specific to your state.
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.
Please note: The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education requirement.
If you have already received credit for attending some or the entire program, please be aware that state administrators do not permit you to accrue additional credit for repeat viewing even if an additional credit certificate is subsequently issued.
Credit will be granted only to the individual on record as the purchaser unless alternative arrangements (prearranged groupcast) are made in advance.