Private Company Acquisitions: A Mock Negotiation

Synopsis

A number of things can happen between the signing of a purchase agreement and the closing of the transaction that can cause a buyer or seller to have second thoughts. Our program features leading M&A attorneys engaging in mock negotiation, highlighting complex issues and recent developments in M&A law. In addition to prominent M&A attorneys our panel includes an investment banker, a tax attorney, a Delaware litigator and an expert on U.K. mergers and acquisitions. Topics include: Mergers versus stock or asset acquisition, appraisal and fiduciary obligations, contingent liabilities, breakup fees and the tax consequences of various structures.



Outline
I. Private Company Acquisitions: A Mock Negotiation

A. Introductions
B. Setting the Stage
C. Response to the Original Terms
D. Stock vs. Asset Transaction
E. Consult Your Tax Attorney Early and Often
F.  The IRS is a Partner in the Deal
G. Do We Need an Appraisal?
H. Selling Assets Through a Subsidiary
I.  Merger vs. Asset Transaction
J.  UK Perspectives on Sale of Private Companies
K. Confidentiality and Exclusivity Agreements
L.  Breakup Fees and Fiduciary Obligations
M. Non-Binding Agreements in the UK and Europe
N. Representations and Indemnities
O. Due Diligence in Representations
P. Trilogy of Texas Cases
Q. Delaware Indemnification
R. Fraud and the Statute of Limitations

 



Content Provided
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The Penn State Dickinson School of Law

Founded in 1834 by Judge John Reed, The Dickinson School of Law is the oldest law school in Pennsylvania and the fifth oldest in the nation. Throughout its history, the law school has trained distinguished graduates who have gone on to become leaders of the bar, of the judiciary, of government, and of business. These alumni include the first secretary of the U.S. Department of Homeland Security, five governors, three U.S. senators, and more than 100 federal, state and county judges and countless prominent lawyers and civic leaders. In 2000, the law school merged with Penn State, one of the country’s premier research universities, and stepped into a new era of legal excellence.

Penn State Dickinson School of Law Center for the Study of Mergers and Acquisitions

The center, headed by Samuel C. Thompson Jr., former director of the UCLA Center for the Study of Mergers and Acquisitions, examines corporate, securities, tax, antitrust, and other legal and economic issues that arise in mergers and acquisitions. An important part of the center’s mission is to sponsor continuing legal education programs addressing these issues.

The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of Richard De Rose

Richard De Rose
Houlihan Lokey, Inc.

Richard De Rose is a Managing Director in the New York office of Houlihan Lokey, Inc., where his primary responsibilities include providing investment banking, valuation and transactional opinion services. He is a member of the firm’s Fairness, Solvency and Technical Standards Committees. With over 20 years of investment banking experience, he has extensive expertise in successfully managing complex transactions across a broad spectrum of industries.

Prior to joining Houlihan Lokey in 2003, Mr. De Rose served as managing director in the Mergers & Acquisitions Group of Bear Stearns. In that capacity, he advised clients in negotiated mergers and acquisitions, divestitures, leveraged buyouts, contested takeovers, and proxy fights, completing over 150 M&A transactions. Mr. De Rose was also a managing director in the firm's Financial Restructuring Group, advising debtors, senior lenders, bondholders and prospective acquirers of financially distressed companies. He also held management responsibilities in the firm's administration, maintaining oversight of investment banking legal and compliance matters, and serving as a member of Bear Stearns' Valuation Committee.

Mr. De Rose is a member of the Corporations Committee of the Association of the Bar of the City of New York, the Executive Committee of the Business Law Section of the New York State Bar Association, the M&A Committee of the American Bar Association, and the American Bankruptcy Institute. He holds series 7, 24 and 63 licenses from FINRA.

Mr. De Rose earned a B.A. in philosophy from the University of Pennsylvania, a Ph.D. in philosophy from Brown University, and a J.D. from the New York University School of Law.

Photo of Byron F. Egan

Byron F. Egan
Jackson Walker LLP

Byron F. Egan is a partner of Jackson Walker L.L.P. in Dallas. He is principally engaged in a corporate, partnership, securities, and mergers and acquisitions practice. Mr. Egan has over 35 years of experience in business entity formation and governance matters, M&A, and financing transactions. In addition to handling transactions, he advises boards of directors and their audit, compensation and special committees with respect to fiduciary duty, Sarbanes-Oxley Act, special investigation and other issues.

Mr. Egan is a Vice Chair of the Negotiated Acquisitions Committee of the American Bar Association and served as Co-Chair of its Asset Acquisition Agreement Task Force, which wrote the Model Asset Purchase Agreement with Commentary. He is a member of the American Law Institute and is a former Chairman of the Texas Business Law Foundation, of which he is currently a director. He is also a former Chairman of the Business Law Section of the State Bar of Texas, and former Chairman of that section’s Corporation Law Committee. On behalf of these groups, Mr. Egan has been instrumental in the drafting and enactment of many Texas business entity and other statutes.

For over 10 years, Mr. Egan has been listed in The Best Lawyers in America under Corporate, M&A or Securities Law. He is a four time recipient of the Burton Award for Legal Achievement. Mr. Egan has been recognized as one of the top corporate and M&A lawyers in Texas by a number of publications, including Corporate Counsel Magazine, Texas Lawyer, Texas Monthly, The M&A Journal (which has profiled him) and Who’s Who Legal. Mr. Egan writes and speaks about the areas in which his law practice is focused, and is a frequent author and lecturer regarding M&A, corporations, partnerships, limited liability companies, securities laws, and financing techniques.

Mr. Egan received his B.A. in 1965 and his J.D.in 1968, earning both degrees at the University of Texas. He was admitted to the Texas Bar in 1968. After law school he served as a law clerk for Judge Irving L. Goldberg on the United States Court of Appeals for the Fifth Circuit.

Photo of Frances Murphy

Frances Murphy
Slaughter & May

Frances Murphy is a partner at Slaughter & May in London and heads the firm’s corporate practice. She specializes in acting for corporate clients and investment banks, on corporate finance, and mergers and acquisitions transactions, both in England and overseas. She also advises corporate clients generally on day-to-day corporate matters. She has wide experience of mergers and takeovers, private acquisitions and disposals, joint ventures, restructurings, demergers, and of equity and debt financing structures. Ms. Murphy also has significant experience of the demutualization of building societies.

Ms. Murphy is listed as a leading individual in the Mergers and Acquisitions section of the Legal 500, 2009 and in the Corporate/M&A: High-end Capability in Chambers UK, 2010.

Ms. Murphy received her LL.B. from The University of Sheffield.

Photo of Michael L. Schler

Michael L. Schler
Cravath, Swaine & Moore LLP

Michael L. Schler is a partner in the Cravath Tax Department. His practice includes corporate tax, corporate finance (including structured finance and securitizations), mergers and acquisitions and international transactions.

Mr. Schler is a former chair of the New York State Bar Association Tax Section, and he remains an active member of the Tax Section Executive Committee. He is a member of the American College of Tax Counsel, the chair of the New York Tax Forum, a trustee and the former president of the American Tax Policy Institute, a past Consultant in tax programs of the American Law Institute, the author of many published tax articles, and a frequent speaker at tax conferences. He is the co-chair of the annual merger and acquisition tax institute co-sponsored by Penn State Dickinson School of Law and the New York City Bar.

He received a B.A., magna cum laude, from Harvard University in 1970, a J.D. from Yale Law School in 1973 and an LL.M. in taxation from New York University in 1979. After a clerkship with Hon. Max Rosenn of the U.S. Court of Appeals for the Third Circuit, he joined Cravath in 1974 and became a partner in 1982.

Photo of H. Lawrence Tafe, III

H. Lawrence Tafe III

H. Lawrence Tafe III was Of Counsel to Day Pitney LLP in their Boston office, practicing in the areas of corporate and securities law. In his many years of practice in Boston, Mr. Tafe represented public and privately-owned companies in all areas of corporate practice, with emphasis in the areas of mergers and acquisitions, corporate finance and securities transactions. Mr. Tafe was also a partner in the firm of Day Berrt & Howard LLP and a member of their Executive Committee.

Mr. Tafe was a member of the Committee on Mergers and Acquisitions of the Business Law Section of the American Bar Association for over a decade and served as Co-Chairman of the Committee’s Asset Acquisition Agreement Task Force, which wrote the Model Asset Purchase Agreement with Commentary, published by the ABA in 2001.

He is a graduate of Harvard College, where he earned his A.B. in 1958, and Harvard Law School, where he was awarded an L.L.B. degree in 1961. He was admitted to the Massachusetts Bar in 1961.

Photo of Donald J. Wolfe, Jr.

Donald Wolfe
Potter Anderson & Corroon LLP

Donald J. Wolfe, Jr. is chair-elect of Potter, Anderson & Corroon, LLP. His practice concentrates on corporate litigation in the Delaware Court of Chancery and the counseling of boards of directors and special board committees of Delaware corporations with respect to issues of fiduciary duty and internal corporate governance. He served as chair of the firm’s Corporate Group and as a member of the firm’s Executive Committee from 1999 through 2005.

Mr. Wolfe has participated as Delaware counsel in many of the more significant Delaware corporate decisions of the Court of Chancery and the Delaware Supreme Court over the past 30 years and has also served as special Delaware counsel for boards of directors and special board committees. Mr. Wolfe has made numerous presentations at a variety of corporate law seminars and symposia around the country.

Mr. Wolfe recieved his J.D. from Temple University School of Law in 1976 and his B.A. from the University of Delaware in 1972.

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Details

Course Code : 776414

Release Date: 5/15/2012 12:00:00 AM
Length: 1hr 35min
Format Type: Video
Recorded Date: 10/13/2011

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