The latest trends in deal protection, financing conditions and MAC outs, including the impact of recent Delaware decisions

Transcription

1 Mergers & Acquisitions 2015: Trends and Developments, January 15-16, 2015 Live Webcast, January Why You Should Attend Spawned by strength in the debt markets, a strong stock market, and plentiful levels of cash, merger and acquisition activity has been robust in The ability to be an effective negotiator in an M&A transaction requires staying abreast of the latest deal trends. This program will help you stay up-to-date on recent trends in deal making such as developments regarding material adverse change provisions, lessons in addressing advisor conflicts, the use of representation and warranty insurance, and the increasing use of stock as currency for transactions. A team of top industry professionals will walk you through each step in structuring, negotiating and consummating a transaction, with an emphasis on these and other developments. What You Will Learn How to structure an acquisition The latest trends in deal protection, financing conditions and MAC outs, including the impact of recent Delaware decisions Understanding tax considerations The role of reverse break-up fees The impact on deals of foreign buyers and strategic buyers Financing trends, including the rate environment, Dodd Frank impact, and covenant lite availability The use of representation and warranty insurance What to look for in due diligence The impact of recent Delaware decisions on settlement of strike suits and on investment banker conflicts; efforts to insure a friendly litigation jurisdiction through bylaw amendments How to advise a board of directors The latest developments in public disclosure requirements affecting the deal environment How to navigate the regulatory landscape Financing commitment letter issues, including SunGard provisions

2 How to draft and negotiate the purchase agreement and financing agreements Special areas to watch out for, such as ethical issues, environmental issues and antitrust issues How to prevent a market check from being second guessed by a Delaware court The role of go shop provisions Special provisions in the purchase agreement and much, much more Who Should Attend Attorneys who counsel corporations (both inside and outside), corporate board members, investment bankers and other M&A advisors. Special Feature An outstanding panel of M&A experts will engage in a critical analysis of a hypothetical acquisition, from negotiations through closing. You will witness, through an actual example, how a transaction develops and how commonly encountered issues are resolved. The program will include role playing to illustrate key elements of the transaction. You can also earn one full hour of ethics credit with our segment titled Ethical Traps for the M&A Practitioner. Program Schedule Day One: 9:00 a.m. 5:15 p.m. Morning Session: 9:00 a.m. 12:00 p.m. 9:00 Chairman s Overview of the Hypothetical Transaction R. Goldberg 9:15 Planning the Transaction Confidentiality agreements; letters of intent Structuring: one step vs. two step Transaction timetable Use of special committees Management role Fairness opinions K. Parker 10:15 Federal Tax Considerations

3 Taxable acquisitions Tax-free reorganizations Asset vs. stock acquisitions Merger of equals Spin-offs and split-offs Section 382 and NOL rights plans S. Finkelstein 11:00 Networking Break 11:15 Federal Tax Considerations (continued) 12:00 Lunch S. Finkelstein Afternoon Session: 1:00 p.m. 5:15 p.m. 1:00 Advising the Board of Directors Directors fiduciary duties-trends in the Delaware case law Business Judgment Rule Importance of independent directors Reliance upon third-party advisors and fairness opinions Need for special committees Enhanced scrutiny Considerations applicable to financially distressed companies R. Goldberg, R. Lesnick, E. Simonson 2:00 Ethical Traps for the M&A Practitioner Clearing conflicts in an M&A transaction Where do ethical duties lie in a management buy-out? Ethical issues arising in the representation of a special committee Negotiating with in-house counsel and more J. Walker 3:00 Networking Break

4 3:15 Specialized Areas of Concern Applicable to the Transaction Due diligence Confidentiality agreements Environmental issues, e.g. CERCLA, ECRA, etc., phase one studies Antitrust and other regulatory issues E. Simonson 4:15 Role Playing--Board of Directors Meeting Role playing to illustrate key elements of the hypothetical transaction Board fiduciary duties in auction process Comparing strategic alternatives The role of the financial advisor at a board meeting D. Cohen, R. Goldberg, K. Parker, E. Simonson, J. Walker 5:15 Adjourn Day Two: 9:15 a.m. 4:45 p.m. Morning Session: 9:15 a.m. 12:30 p.m. 9:15 Legal Issues Involved in Financing the Transaction Commitment letters, including SunGard and Xerox provisions, MAC and diligence conditions, etc. Syndication issues, including flex and marketing periods Fraudulent transfers and financing structures Loan documentation issues, including covenant lite, equity cures, incremental facilities J. Kim, D. Morse 10:15 Representation and Warranty Insurance Purpose and scope Benefits/uses of policies in transaction

5 Types of policies--protection against unknown issues and known issues Pricing and terms Customary exclusions Dispelling myths regarding policies Trends R. Goldberg, J. Kim, C. Schioppo 11:15 Networking Break 11:30 Investment Banking Considerations Valuation and structuring Auction tactics Form and mix of financing Fairness opinions D. Cohen 12:30 Lunch Afternoon Session: 1:30 p.m. 4:45 p.m. 1:30 Negotiating the Purchase Agreement Tailoring representations and warranties to fit the deal Latest covenant trends Deal protections- termination fees, no-shop and go shop provisions, matching and topping provisions, stockholder lock-ups Indemnification issues baskets, caps and set-offs Termination provisions, including MAC clauses, financing outs and other escape hatches R. Goldberg, E. Wechsler 2:30 Role Playing Negotiating the Purchase Agreement Role playing to illustrate key elements of negotiating a purchase agreement

6 Short cuts in negotiations Negotiating deal protections Taking advantage of Delaware Section 251(h) R. Goldberg, E. Wechsler 3:30 Networking Break 3:45 Disclosure Matters and Other SEC Considerations When must disclosure be made prior to signing a definitive agreement? Public filing of post-announcement shareholder communication materials A review of the impact on a transaction of the Form 8-K rules Tender offer vs. merger Registration issues when securities are the consideration Sarbanes-Oxley related issues D. Connolly 4:45 Adjourn Faculty Richard A. Goldberg Dechert LLP Chair David Cohen Managing Director Investment Banking, Healthcare M&A Oppenheimer & Co. Inc. David Connolly Shearman & Sterling LLP Stuart M. Finkelstein Skadden, Arps, Slate, Meagher & Flom LLP

7 Jonathan C. Kim Dechert LLP Randi C. Lesnick Jones Day David W. Morse Otterbourg P.C. Kelley D. Parker Paul, Weiss, Rifkind, Wharton & Garrison LLP Craig A. Schioppo Managing Director Marsh USA, Inc. Eric Simonson Blank Rome LLP James Q. Walker Richards Kibbe & Orbe LLP Ernest S. Wechsler Kramer Levin Naftalis & Frankel LLP Program Attorney: Lauren E. Nochta