FCPA Due Diligence in M&A: Leveraging the New DOJ Opinion Procedure Release
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1 Presenting a live 90-minute webinar with interactive Q&A FCPA Due Diligence in M&A: Leveraging the New DOJ Opinion Procedure Release Mitigating Pre-Closing Risks and Implementing Post-Closing Protections WEDNESDAY, FEBRUARY 4, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Thaddeus R. McBride, Partner, Bass Berry & Sims, Washington, D.C. Brian Moffatt, Senior Compliance Counsel. EthosEnergy, Houston The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.
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5 Mergers & Acquisitions Under the FCPA: Adequately Addressing Due Diligence Strafford Publications Webinar February 4, 2015 Brian Moffatt Thad McBride
6 Agenda FCPA Overview Practical Guidance Questions 6
7 Goals Understand the law and common pitfalls Don t assume deal team has this covered Learn to identify and report potential issues Address issues earlier in diligence and negotiations Smoother deal process overall 7
8 Consequences Discovery of FCPA violations may: Alter transaction value Change deal structure Necessitate specific reps and indemnifications in purchase agreement Delay proposed deal Cause integration challenges after closing CRATER THE DEAL 8
9 What is the FCPA? US anti-corruption statute that has been in place since 1977 Other countries have similar laws OECD, UN, and other international organizations have adopted similar conventions Vigorous enforcement by DOJ and SEC 9
10 What does the FCPA do? Prohibits corrupt payments to foreign officials for a business purpose Requires Issuers to maintain accurate books and records and robust internal controls Best practice even for non-issuers 10
11 Who is subject to the FCPA? Any US citizen or resident, wherever located Any entity organized/incorporated under US law, wherever located Any Issuer, regardless of nationality Issuer = a company that (i) has securities registered in United States or (ii) is required to file periodic reports with the SEC Any person in United States, regardless of nationality A regulated person s agent or other representative 11
12 What is a Payment? Actual payment or gift Offer or promise to pay Authorize to pay ** Can be any thing of value. 12
13 What is a Thing of Value? Any thing of value to recipient Money Gift Hospitality Loan/favorable financing Discounted/free maintenance Donation Can be proactive or reactive 13
14 Who is a Foreign Official? Any officer, employee or agent of any: Non-US government, whether national, state, local, etc. Department, agency, or bureau of a non-us government Instrumentality owned/controlled by a non-us government Public international organization (e.g., UN, WTO, etc.) Non-US political party 14
15 Foreign Official (cont.) A non-us political party itself Candidate for non-us political office Person holding ceremonial title depending on facts Anyone acting on behalf of a Foreign Official Rank or title is irrelevant 15
16 What Payments are Permitted? Reasonable and bona fide payment to Demonstrate, promote, or explain a product or service, or Execute or perform a contract with a foreign government Payment authorized under country s written law Facilitating Payments Payment to expedite non-discretionary governmental action NOT PERMITTED under most country s laws Highly fact-dependent ; keep good records 16
17 Settlements Involving M&A Snamprogetti (2010) 2006: ENI sold Snamprogetti to Saipem 2010: Snamprogetti incurred FCPA criminal liability and agreed to pay $240 million fine ENI and Saipem held jointly liable Each required to abide by terms of DPA 17
18 Settlements (cont.) Titan (2005) In 2003, Lockheed sought to acquire Titan (US military intelligence / communications company) During pre-deal diligence, the parties found payments to officials in Benin including to account in Monaco! Disclosed to USG 18
19 Monaco! 19
20 Titan (cont.) Lockheed ultimately walked deal L-3 acquired Titan in 2005 Titan settled with USG for total of $28.5 million 20
21 Liability in M&A Context Buyer may be liable for target s FCPA violations pre-acquisition Successor liability Asset sale vs. stock sale 21
22 DOJ Opinion Release Sought to acquire a UK company By the terms of the acquisition, was restricted from access to certain relevant FCPA-related information DOJ stated it would not take action against company for any subsequently determined violation Committed to (i) conduct a detailed internal review and (ii) report back to the Justice Department 22
23 OPR (cont.) Committed to following schedule: Within 10 days of closing present DOJ with diligence plan including low, medium, and high risk areas to review Within 90 days complete and report on low risk review Within 120 days complete and report on medium risk review Within 180 days complete and report on high risk review Continue communication with DOJ, extend review as needed, complete all diligence within 1 year 23
24 OPR (cont.) The Opinion serves as a guide based on the DOJ s standard of disclosure Predicated on accuracy of facts as submitted to DOJ Not binding on DOJ in any other matter Not clear that such a diligence plan is only way to conduct adequate diligence 24
25 DOJ Opinion Release Requestor planned to acquire non-issuer foreign company $100,000 in suspicious payments Inadequate records to support transactions Deficient accounting practices No compliance program No ongoing contracts that may have been acquired through bribery 25
26 OPR (cont.) Successor liability does not create liability where none existed before No intention to take enforcement action No potentially improper payments subject to US jurisdiction No retroactive FCPA liability 26
27 OPR (cont.) DOJ reiterated steps for M&A: (1) conduct thorough risk-based FCPA and anticorruption due diligence; (2) implement acquiring company s code of conduct and anti-corruption policies as quickly as practicable; (3) conduct FCPA and other relevant training for acquired entity s directors and employees, as well as third-party agents and partners; and (4) conduct FCPA-specific audit of the acquired entity. 27
28 FCPA Due Diligence - General Risk Assessment Review risk-indicators based on Public sector revenue Use of third parties (agents, distributors, etc.) High-ranking CPI territories Relationships with state-owned enterprises 28
29 Diligence (cont.) Consider other factors too: Is the target in an industry where corruption is pervasive? Is the target important to the business? Is the acquisition particularly high-profile? In the media? Within the company? Were target s key assets or contracts obtained appropriately? 29
30 Key Steps (cont.) Determine any essential remedial actions and perform a disclosure analysis, if necessary KEY OBJECTIVE: Determine successor liability disclosure action no later than 180 days, in alignment with the DOJ s Opinion Procedure Release No:
31 M&A Diligence Nuts & Bolts Review documents such as: Compliance policies and procedures Copies of training presentations and attendance lists Reports of compliance / internal audits Information about any investigations Agent / distributor agreements 31
32 Nuts & Bolts (cont.) Review books and records Focus on accounts such as: Hospitality Entertainment Gifts Facilitation Petty cash Expense reimbursements Special / miscellaneous / other unusual Interview personnel if needed 32
33 Compliance Pitfalls Fail to evaluate third party relationships Not doing a deeper dive on revenue programs Lack of documented compliance procedure and / or trainings (enhanced review) Missing an enforcement disclosure analysis Not preparing for integration on DAY 1 post-close 33
34 M&A Contract Terms Include appropriate protections Standard compliance reps and warranties Indemnity, including for costs of any compliance investigation Additional terms if needed based on facts of deal 34
35 Post-Acquisition If not possible pre-acquisition, conduct due diligence post-acquisition Promptly incorporate acquired company into compliance program Training Re-evaluate third parties Audits of new business units Disclose if absolutely necessary 35
36 Hypothetical / Discussion / Questions
37 Hypothetical Alabama Co is pursuing a joint venture with a Chinese company. Alabama Co decides to proceed with the venture even though the Chinese company made corrupt payments. Should Alabama disclose the issue to the US government? Are there other steps Alabama should take? 37
38 THANK YOU! Brian Moffatt Thad McBride Senior Compliance Counsel Partner EthosEnergy Bass Berry & Sims +1 (713) (202)
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