Sale & Purchase Agreements - The Commercial Issues

Transcription

1 Sale & Purchase Agreements - The Commercial Issues Negotiating the contentious topics in SPAs This course is presented in London on: 1 March 2019, 28 June 2019, 28 November 2019 If you have 5 or more participants it may be cost effective to have this course presented in-house either on your premises or via live webinar. Trusted By: The Banking and Corporate Finance Training Specialist

2 Course Objectives Review the basics of a typical SPA structure Understand how and why governing law and jurisdiction can affect the SPA - UK vs civil law Identify the key items that comprise of the Equity Bridge Analyse the key definitions of cash and debt Understand how to approach the working capital Target/PEG Reviw the key issues in the Net Asset Value approach Understand Course the Overview key issues in using Completion Accounts Why the hierarchy of accounts matters in Completion Accounts Locked Box theory vs practice Understand how value accrual works How to approach split Exchange / Completion (Signing vs Financial close) Is there a market standard for MAC/MAE in Europe Entire agreements clauses in practice Caps on seller s liability Tipping vs Deductible baskets, de minimis exceptions (what s market?) How to avoid problems in drafting the Indemnity clause Is Warranty insurance any use interaction with warranties? Course Content SPA structure & Interpretation issues The skeleton structure of the SPA: overview General approach to interpretation of contracts UK vs USA vs Europe Influence of Arnold v Britton case Interpretation Forex issues re price / currency (avoiding the traps) Implied terms & duty to negotiate in good faith Position in the UK Position in the USA Position in Europe / civil law - Traps for the unwary The spectrum of endeavours/ efforts Best vs Reasonable other variants Dispute Resolution Jurisdiction & choice of law Issues re the Effective Contract Date Impact on warranties Review Norther Shell case Conditions Precedent matters to consider Title to the (sale) the shares Full vs Limited title guarantee - ramifications The purchase price: reconciling enterprise to equity value The cashfree - debt free approach (the equity bridge) Cash free/ debt free (What should be included in Debt) Cash vs trapped cash? Debt what is included? Capex issues The Calculating the working capital Target or PEG Calculating the working capital Target or PEG Other adjustments to the price warranties & indemnity claims Deals based on Net Asset Value Potential problem areas Lessons from the Denware case

3 Completion accounts approach What do or can the Completion Accounts comprise Review Completion Accounts timeline Review typical Completion Accounts clause What are the key issues when Completion Accounts are used The basis of preparation of the Completion Accounts The hierarchy of accounts Why and how it matters Sellers vs buyers approach GAAP override good or bad Main areas of dispute & how to fix them Wrong hierarchy of accounts Poor / inadequate definitions Ambiguous accounting policies Access for the seller Lessons from Brim Holdings case Lessons from Mehiel case Locked Box approach Key principles - Pros & cons Review Locked Box timeline Review typical Locked Box clause Dealing with Leakage (& permitted leakage) Structuring with the value accrual Other areas of potential problem areas Main Issues with the Accounts Main Issues to consider when exchange & completion not simultaneous Right to Termination clause Conditions to completion Matters between exchange & completion Role of material Impact on Warranties repeat all, some or none at Completion? MAC/MAE clauses What is a MAC Review WPP - Tempus Is there a market approach Representations & misrepresentations Representations vs warranties vs indemnities Representations vs term (of contract) Types of misrepresentations & their remedies Fraudulent vs negligent vs innocent misrepresentations Impact of Entire Agreement clause 3 key aspects Scope of entire agreement can it cover prior course of conduct Role of Non-reliance statement How effective is exclusive remedies carve-out Review Witter and Grimstead cases Warranties Warranties rationale & purpose Warranties and interaction with disclosure

4 The common areas of warranty protection The information warranty (on the target) Quality of information information is true, accurate, complete and not misleading Accuracy of information in the disclosure letter / bundle The full disclosure / sweeper warranty Who provides the warranties Issues with multiple sellers, limits on liability Sales of subsidiaries Sales by trustees What about the directors? Private equity issues - managers (not owners) Disclosure General vs specific disclosure The disclosure letter & disclosure bundle The disclosure standard Review of New Hearts case - what is fair disclosure? Impact of Infinteland case Position in civil law What happens if the seller fails to disclose a matter civil and criminal aspects Sandbagging and Anti-sandbagging Indemnities Purpose of & rationale for Indemnities Key issues Indemnification as the exclusive remedy (carve-outs) Main areas of Indemnity coverage Environmental Product liability Litigation (esp IPR) Potential problem areas Review impact of the Padre Island case Review impact of the Eurus case How to make the indemnities watertight Limitations on liability under the warranties & indemnities Awareness carve-outs Time limits Financial limits is there a market position? De minimis caps Tipping Basket vs Deductible basket Overall cap on all claims Other limits Security for breach of warranty Retentions & escrow accounts Set-off Bank guarantees Warranty & Indemnity insurance a viable solution? Buyer vs seller policies key differences

5 Background of the Trainer The trainer is a consultant, public speaker and author. He provides training programmes globally to a blue-chip client base on private equity, debt finance, loan documentation and restructuring. He is a senior consultant with Debt Xplained, with Grant Thornton UK (Debt Advisory) and is also a Senior Advisor to KPMG Finland. He has spoken at conferences in the UK, Europe, and Australasia & South Africa. He provides training to a wide range of clients on a bespoke in-house basis & publicly through Redcliffe Training Associates. Additionally, he is the Programme Director for the infrastructure / project finance module for the MBA programme at the Cass Business School in London. Course Summary A simplistic view of an acquisition is that the actual price paid is paramount but experienced practitioners recognise that price is but one aspect of the deal and that there is the potential for significant value leakage in arriving at the actual price and also from claims arising after completion. The price paid may seem a simple concept but, in practice, requires an understanding of how this is derived. Most private acquisitions are based on a cash-free, debt-free basis with adjustments for working capital. Some sectors (e.g. real estate, banks) use a Net Asset Value approach which raises a different range of problems In the Completion Accounts approach, standard precedents adopt a very broad-brush approach to the definitions of cash and debt which can create disputes before and after the deal closes. In addition, setting the working capital target/peg is another fraught area ripe for dispute. Where a Locked Box is used, the parties face different issues; namely the issues of leakage and the value accrual. Split exchange and completion are another potentially controversial area in with regard to which warranties need repeating and how that dovetails with disclosure and the MAC. There is no right or wrong answer to many of these questions and the ultimate position will be dictated by the negotiating strength of the respective buyer and seller. Despite that, a sound grasp of the key commercial and legal issues can minimise value loss for parties. This programme focuses on transactions involving the purchase of shares but also covers areas of specific relevance to asset purchases. It provides a step by step template to the basics but also covers the critical legal and commercial aspects in the transaction from the perspective of both buyer and seller. Reference is made to recent or relevant leading cases. Please note that this course covers material that is also covered on the Advanced Negotiation Issues in M&A course.

6 9:15-17:00 London Standard Price: VAT Membership Price: VAT In-House Training Delivering this course in-house for 5 or more participants could be very cost effective. The venue and timing can be agreed to suit the client, as well as the selection of the trainer and the precise contents of the seminar. Tailored Learning All of our training courses can be tailored to suit your company s exact training needs. We will work closely with you to help develop a training programme with content that is unique for your organisation. Please us on enquiries@redcliffetraining.co.uk for more information E-Learning This course can also be presented as a bespoke e-learning programme created by you to fit your exact requirements.