ALI-ABA

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What You Will Learn

This annual advanced course of study, comprising more than 12 hours of instruction, is designed to offer the experienced corporate lawyer an overview of some of the more sophisticated strategies and techniques in the field of corporate mergers and acquisitions and a review of several substantive legal areas affecting such transactions.

The program covers:

Issues that should be considered by both purchaser's and seller's counsel in negotiating the acquisition of a closely held company (or a subsidiary or division of a publicly held company)

Tax considerations in structuring and negotiating the acquisition

Using stock of both public and private companies as acquisition consideration

Special problems that should be considered when acquiring divisions and subsidiaries, or when acquiring a troubled or bankrupt company

 

The faculty identifies and discusses some of the major as well as more subtle issues that may (or should) arise in the context of the negotiated acquisition. Included in the program is a discussion of the factors to be considered in the structuring of a negotiated transaction with stock and/or cash as consideration, as well as a mock negotiation of an acquisition agreement as a vehicle for identifying the various issues that should be considered, from both the purchaser's and the seller's perspectives. Issues that arise in the context of private equity transactions will receive particular attention.

 

Time is reserved throughout the program to address questions submitted by the registrants.

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Planning Chairs

(Also on faculty)

Franci J. Blassberg, Debevoise & Plimpton LLP, New York

Elliott V. Stein, Wachtell, Lipton, Rosen & Katz, New York

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Faculty

Corinne Ball, Jones Day, New York

Judith L. Church, Debevoise & Plimpton LLP, New York

Bartley C. Deamer, Bingham McCutchen LLP, East Palo Alto, California

Edmond T. FitzGerald, Davis Polk & Wardwell, New York

Jane D. Goldstein, Ropes & Gray LLP, Boston

Hanno F. Kaiser, Latham & Watkins, LLP, New York

David MacKinnon, Ernst & Young LLP, New York

Lewis R. Steinberg, Managing Director, UBS Securities LLC, New York

Roy Jack Watson, Jr., Watson Law Offices, Bedford, Massachusetts

ALI-ABA Staff: Thomas M. Hennessey, Assistant Director, Office of Courses of Study

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Note: The discussions include at least one full hour on ethics and professional responsibility issues, accepted as such by most, but not all, MCLE jurisdictions.

Program Schedule

(Subject to minor change)

 THURSDAY, OCTOBER 4, 2007

8:00 a.m. Registration and Continental Breakfast

Webcast Segment A (Thursday morning program)

9:00 a.m. Introductory Remarks and Course Overview

9:05 a.m. Pre-Deal Legal Considerations - Ms. Goldstein
Points to negotiate with finders; confidentiality arrangements; the pros and cons of using letters of intent and key issues; organizing legal due diligence; the basics of purchase price adjustments and earn-out arrangements

10:00 a.m. Pre-Acquisition Review of Financial and Operating Data - Mr. MacKinnon
Using financial data to obtain an insight into the operations of a company; the effect of accounting practices on the "quality of earnings," including inventory valuation and other accounting issues, with special emphasis on recent developments in the accounting world; accounting problems of the closely held corporation; how should the due diligence process and the reports from lawyers to accountants evolve in light of recent legislation and pronouncements?

10:45 a.m. Networking Break

11:00 a.m. Tax Considerations in Structuring and Negotiating the Acquisition - Mr. Steinberg
The basic issues in structuring and negotiating an acquisition or divestiture transaction, including whether (and how) to structure the deal as a taxable versus a tax-free acquisition, tax-advantaged financing techniques, allocation of purchase price and the ability to amortize goodwill and other intangibles, and the ins and outs of negotiating tax representations and warranties and indemnities

12:00 noon Questions and Answers

12:15 p.m. Lunch Break

1:45 p.m. Employee Benefits and Executive Compensation Issues - Mr. FitzGerald
Employee benefits and executive compensation considerations, including dealing with executives and their compensation, option plans, and other qualified and non-qualified employee benefit plans, with special attention to Section 409A issues; understanding the significant liabilities and problem areas, including stock option backdating issues, controlled group issues, pension plan funding, multiemployer withdrawal liabilities, golden parachutes, severance concerns, and retiree health and welfare benefits

2:45 p.m. Special Problems When Acquiring Divisions and Subsidiaries - Ms. Blassberg
Identifying the assets and business to be sold; applicability of fiduciary duties and other legal principles to sales of subsidiaries and divisions; special problems in audits of divisions and subsidiaries and the need for such audits; special problems in acquiring foreign assets and spinoffs of foreign subsidiaries; the need for transitional service arrangements; special employee benefits and insurance problems and other problems in leaving the corporate nest

3:30 p.m. Questions and Answers

3:45 p.m. Networking Break

4:00 p.m. Intellectual Property Aspects of Corporate Acquisitions - Ms. Church
Issues in evaluating intellectual property assets in acquisitions, including validity, scope of rights, and restrictions on use; particular issues that can arise when a business is conducted primarily over a global computer network; treatment of intellectual property issues in acquisition agreements and ancillary agreements such as licenses and transition services agreements and financing documents

4:45 p.m. Immigration Issues in Acquisition Transactions - Mr. Watson
Understanding the immigration consequences of mergers, acquisitions and other types of corporate restructuring, and how different structures affect a company's ability to continue to employ key personnel; using a due diligence checklist to assess risk arising from immigration issues when acquiring a company; addressing critical labor shortages caused by visa caps and other restrictions through acquisition of foreign companies

5:15 p.m. Questions and Answers

5:30 p.m. Adjournment for the Day

 

FRIDAY, OCTOBER 5, 2007

8:00 a.m. Continental Breakfast

8:30 a.m. Special Problems in Using Stock as Acquisition Consideration - Mr. Deamer
Using stock of both public and private companies as acquisition currency, with an emphasis on acquisitions of private companies, including stock liquidity issues, securities law alternatives, registration rights agreements and shareholders' agreements, and special issues with roll-up/consolidation acquisitions and the use of preferred stock

9:30 a.m. Buying a Distressed or Bankrupt Company - Ms. Ball
Issues in buying a distressed company prior to bankruptcy, including fraudulent transfer and successor liability issues; buying a company in a bankruptcy, including acquisitions pursuant to Section 363 of the Bankruptcy Code and through a plan of reorganization, bidding procedures, intellectual property concerns, and the assumption of executory contracts in connection with the sale

10:30 a.m. Networking Break

10:45 a.m. Antitrust Issues in Mergers and Acquisitions - Mr. Kaiser
Understanding and managing the strategic and procedural aspects of the antitrust laws as they relate to mergers and acquisitions; doing deals with competitors; doing deals with international reach; special features of intellectual property transactions; identifying the pitfalls and opportunities of antitrust enforcement in complex transactions

11:45 a.m. Questions and Answers

12:00 noon Lunch Break

Webcast Segment B (Friday afternoon program)

1:30 p.m. Negotiating the Acquisition of the Private Company - Ms. Blassberg and Mr. Stein
A mock negotiation is used to highlight the issues and pitfalls in negotiating the representations, warranties, covenants, and closing conditions in the acquisition agreement. The panel discusses the negotiation process as well as the market trends in resolving various negotiated issues. Special attention is given to use of escrows, survival terms for representations and warranties, differences between stock and asset transactions, structuring indemnities (whether joint or several) of the appropriate scope and duration, and issues that arise when the buyer is a private equity firm or when one or more of the sellers will be an employee (or stockholder) after the closing.

3:00 p.m. Networking Break

3:15 p.m. Negotiating the Acquisition of the Private Company (continued)

4:15 p.m. Questions and Answers

4:30 p.m. Adjournment

 

Total 60-minute hours of instruction: 12.5

Suggested Prerequisite: Limited experience in legal practice in subject matter or completion of Basic CLE Course in subject matter

Educational Objective: Maintenance of professional competence as a practitioner; provision of information on recent legal developments; development of proficiency in performance of intricate and complex legal tasks within a narrow area

Level of Instruction: Advanced

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Here's what registrants have said about this course:

 “The panelists were obviously very experienced and knowledgeable. I found the mock negotiations captivating. Without a doubt, I can say this was the most informative continuing education course I have attended in my 15 years as a practitioner. . . . I plan to attend [a future presentation of this course], as should all practitioners looking for a truly advanced course of instruction.” – Stan D. Blyth, Wood & Porter, San Francisco, for The M&A Tax Report, vol. 15, #10

Excellent program. The speakers were knowledgeable and effectively presented their various topics and points of view.

The mock negotiation panel with Ms. Blassberg and Mr. Stein was very useful and a great way to present the issues involved in these transactions.

This was an excellent course. While I've done a number of M&A transactions, I still learned a lot.

The mock negotiation between Ms. Blassberg and Mr. Stein was outstandingly informative and engaging.

Great, comprehensive program on M&A topics. The presenters were clearly well-versed in their topic areas and the presentations were a helpful mix of basic principles, practice tips and the current state of the law. The program met all my expectations regarding substantive content, and I especially appreciated speakers' insight not only on particular issues, but also ways to draft around or otherwise deal with/solve the issue so that it doesn't become a road block. I also appreciated the information regarding the state of the market with respect to certain deal terms (i.e. survival, escrow, caps).

Excellent course - again.

 

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