Acquiring or Selling the Privately Held Company 2010

Overview

Recently admitted NY attorneys: This program is accredited for transitional CLE credit

Why You Should Attend
At this perennial favorite, our experienced faculty will walk you through all of the steps associated with acquiring and selling privately held companies, 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 gain an understanding of the key tax, employee benefits, intellectual property and environmental issues that arise and how to address them. You will learn about techniques and strategies essential to successful negotiations and the fiduciary duties inherent in an acquisition or sale. Plus, this year we have added a new segment to help you understand how to effectively deal with the issues that arise when the buyer or seller is a financial sponsor.

What You Will Learn

• Analyze the terms of an acquisition agreement
• Organize the sale process
• Develop successful negotiation strategies and tactics during a mock negotiation
• 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:
  - Tax
  - Employee benefits
  - Intellectual property
  - Environmental
• Cope with the special problems associated with acquisitions of divisions or subsidiaries
• Understand the fiduciary duties of directors and majority shareholders
• Understand the special issues relating to financial sponsors

Special Features

Live Webcast - The New York City session of this program is available live via the web.

• Print the Course Handbook
• Submit questions electronically
• Get “real-time” education right from your PC!

For more information click on the Live Webcast link in the Related Items box.

If you have any questions please call PLI’s Customer Relations Department at (800) 260-4PLI.

Special Bonus to all Registrants

All attendees receive a complimentary copy of PLI's comprehensive Course Handbook. This softcover, bound volume was written to augment this program and to stand alone as a permanent reference. PLI's Course Handbooks represent the definitive thinking of the nation's finest legal minds, and are often the standard reference in the field.

Please Note: NY webcast attendees will receive a downloadable version of the Handbook one business day prior to the program.

PLI Group Discounts

Groups of 4-14 from the same organization, all registering at the same time, for a PLI program scheduled for presentation at the same site, are entitled to receive a group discount. For further discount information, please contact membership@pli.edu or call (800) 260-4PLI.

PLI Can Arrange Group Viewing to Your Firm

Contact the Groupcasts Department via email at groupcasts@pli.edu for more details.

Cancellations

All cancellations received 3 business days prior to the program will be refunded 100%. If you do not cancel within the allotted time period, payment is due in full. You may substitute another individual to attend the program at any time.

Schedule

Please plan to arrive with enough time to register before the conference begins.  A continental breakfast will be available upon your arrival.

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

Michael P. Healy

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

David W. Pollak

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

Jeremy S. Liss

12:30  Lunch Break

Afternoon Session:  1:45 p.m. - 5:00 p.m.

1:45  Specialty Areas

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

B. Employee Benefits

• Identifying ERISA liabilities
• Integrating seller’s and buyer’s plans
• Transferring plan assets
• Utilizing surplus plan assets; ESOPs

J. Mark Poerio

3:15  Networking Break

3:30  Specialty Areas (continued)

C. Intellectual Property

Review of principal intellectual property issues:

• Patents
• Trademarks
• Copyrights
• Trade secrets
• Other proprietary information and know-how

Karen A. Butcher

D. Environmental Issues

The special problems of potential environmental liabilities:

• Discussion of RCRA, CERCLA and state liability for hazardous waste discharge and disposal
• State law inspection requirements
• Key drafting issues

John M. Scagnelli

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

David W. Pollak, Howard L. Shecter

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.

1:45  Fiduciary Duties of Directors and Majority Shareholders

A discussion of the fiduciary duties of directors and majority shareholders in an acquisition or sale transaction, including:

• Due diligence
• Sarbanes-Oxley considerations
• Delaware law update

Eileen T. Nugent

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

• Formulas
• Disputes
• Accounting and tax issues
• Effect on indemnification

David W. Pollak
 
2:45  Networking Break

3:00  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’ success (including recruiting key executives, generating business, financing growth, etc.)
• Insurance

Kevin M. Schmidt

4:00  Indemnification

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

David W. Pollak

5:00  Adjourn

Faculty

Chairperson(s)

David W. Pollak, Morgan, Lewis & Bockius LLP

Speaker(s)

Karen A. Butcher, Morgan, Lewis & Bockius LLP
James T. Chudy, Pillsbury Winthrop Shaw Pittman LLP
Michael P. Healy, Vice President, Conway, Del Genio, Gries & Co. LLC
Jeremy S. Liss, Kirkland & Ellis LLP
Eileen T. Nugent, Skadden, Arps, Slate, Meagher & Flom LLP
J. Mark Poerio, Paul, Hastings, Janofsky & Walker LLP
John M. Scagnelli, Scarinci & Hollenbeck, LLC
Kevin M. Schmidt, Debevoise & Plimpton LLP
Howard L. Shecter, Reed Smith LLP

Program Attorney(s)

Grace O'Hanlon, Practising Law Institute

CLE Credit

Travel Information

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: res.ny@warwickhotels.com.