Online CLE M&A Deal

Online CLE M&A Deal

Jacob W. Stasny, Of Counsel
Sumner, Schick & Pace, LLP

AND

Clyde Tinnen, Partner
Withers Bergman LLP

Understanding the Buyer-Seller Dynamic; information asymmetry and risk allocation

Pre-Transaction Planning

• Key players:
  • Attorney
    • Defining the attorney’s role
• Accountant
• Broker/finder/lead agent
• Investment banker
• Financial consultant
• Escrow agent
  • Caution against allowing party counsel to act as escrow agent
• Pre-deal considerations:
  • Best practices of buyers and sellers before the deal
  • Preferred jurisdictions for buyers and sellers
• Nondisclosure Agreement
  • Timing
  • Key terms/best practices
• Letter of Intent
  • Timing
  • Key terms
  • Binding v. non-binding
  • Short-form v. long-form
  • Modifying the LOI
• Due Diligence
  • Buyer due diligence
  • Seller due diligence
  • Diligence pitfalls

Architecture of a definitive acquisition agreement

• Introductory provisions — names of parties, recitals, definitions
• Description of what is being sold (especially important in asset acquisitions); and, in asset acquisitions, description of what liabilities are being assumed
• Purchase price; payment of purchase price; and, in asset acquisitions, allocation of purchase price
• Sellers' (or target company's) representations and warranties
• Acquirer's representations and warranties
• Sellers' (or target company's) pre-closing covenants
• Acquirer's pre-closing covenants
• Closing
  • When and where
  • Conditions precedent to sellers' (or target company's) obligation to close
  • Conditions precedent to acquirer's obligation to close
  • Deliveries at closing
    • by sellers (or target company)
    • by acquirer
• Termination of agreement
• Indemnification provisions
  • In favor of acquirer
  • In favor of sellers (or target company)
  • Time limitations on asserting claims for indemnification
  • Monetary thresholds and limitations on indemnification claims
  • Procedural issues with respect to indemnification claims (including provisions relating to defense of third-party claims)
• Other post-closing covenants of the parties
• General or "miscellaneous" provisions

• Liability considerations
  • Indemnification & exculpatory provisions
  • Escrow arrangements
  • Representation and warranty insurance
• Fiduciary duties
  • Common law duties
  • Contractual creation, termination, and modification of fiduciary duties
• Compliance issues
  • Pre-deal considerations
  • Public v. private equity
  • Registration and disclosure requirements under 1933 act, and exemptions
  • SEC/Finra/other banking or finance regulatory authorities
  • Council on Foreign Investments in the United States (CFIUS)
  • Hart Scot Rodino (HSR) filings
  • Third party consent (contractual and governmental)

Online CLE M&A Deal

Jacob W. StasnyOf CounselSumner Schick LLP

Jacob Stasny focuses his practice on matters involving private equity transactions and other complex business deals, business litigation, and commercial real estate, serving clients in a broad array of industries, including finance, healthcare, energy, technology, and manufacturing.  Focusing on the representation of businesses, Mr. Stasny has navigated numerous debt and equity finance transactions, corporate acquisitions and divestitures, project finance transactions, commercial real estate transactions, commercial bankruptcies, and matters involving the formation, operation, and liquidation of virtually every type of business entity, in Texas, numerous other states, and offshore.

Clyde TinnenPartnerWithers Bergman LLP

Clyde Tinnen is a partner of Withers Bergman LLP. He focuses his practice on corporate finance, securities and mergers and acquisitions. He represents public and private corporations, from startups to Fortune 100 companies, across industries. He also advises clients on general corporate governance and securities law disclosure matters.

Clyde has structured and negotiated several billion dollars in both domestic and cross-border  transactions. He was recently recognized by Savoy Magazine among its 2018 list of the most influential black attorneys in the U.S.

Before joining Withers, Clyde was a partner at Kelly, Drye & Warren LLP. He began his legal career as an associate at Cravath, Swaine & Moore LLP. Prior to his legal career, Clyde was a senior financial analyst for two public corporations.

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