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ACC ISRAEL ANNUAL CONFERENCE. Identifying Concerns and Overcoming Risk in European M&A Opportunities Marc Fredj Simmons & Simmons Tel Aviv, Israel 16 June 2010. Identifying Concern and Overcoming Risk. Identifying concern: Access to information Identifying Concern: Due Diligence

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acc israel annual conference

ACC ISRAEL ANNUAL CONFERENCE

Identifying Concerns and Overcoming Risk in European M&A Opportunities

Marc Fredj

Simmons & Simmons Tel Aviv, Israel 16 June 2010

identifying concern and overcoming risk
Identifying Concern and Overcoming Risk
  • Identifying concern: Access to information
  • Identifying Concern: Due Diligence
  • Identifying Concern: Disclosure
  • Overcoming Risk: Conditions Precedent
  • Overcoming Risk: MAC Clauses
  • Overcoming Risk: Price Adjustments
  • Overcoming Risks: Earn Outs
  • Overcoming Risk: Indemnities
  • Overcoming Risk: Warranties
identifying concern access to information
Identifying concern: Access to information
  • Auctions vs exclusivity situations
  • Private vs listed targets
  • NDAs
    • Signatories
    • Vendor protection
  • Timing of disclosure
identifying concern due diligence
Identifying concern: Due Diligence
  • General purpose
  • Specific purpose
  • Types of due diligence – coordinating
  • Scope
identifying concern due diligence5
Identifying concern: Due Diligence
  • Materiality
  • Vendor due diligence
  • Data Rooms
  • Communicating results
identifying concern disclosure
Identifying concern: Disclosure
  • Legal duty – contractual obligation
  • General vs Specific
  • Fair disclosure
  • Qualifications (materiality, knowledge)
  • Management’s position
overcoming risk withdrawing from transaction
Overcoming risk: Withdrawing from transaction
  • Pre-contractual stage:
    • good faith
    • break fees
  • Contractual stage:
    • conditions precedent (validity; benefit)
  • MAC Clauses
  • Breach of warranties
overcoming risk adjusting value
Overcoming risk: Adjusting value
  • Price Adjustment:
    • price determinable
    • recourse to experts
    • recovery: claims, escrow, deferred payments
overcoming risk adjusting value9
Overcoming risk: Adjusting value
  • Earn Outs:
    • determination
    • neutralizing certain changes
    • tax treatment
overcoming risk allocating identified and unidentified risks
Overcoming risk: Allocating identified and unidentified risks
  • Weaknesses of legal protections:
    • misrepresentation
    • eviction
    • hidden defects
overcoming risk allocating identified and unidentified risks11
Overcoming risk: Allocating identified and unidentified risks
  • Indemnities:
    • when to use
    • difference with warranties
overcoming risk allocating identified and unidentified risks12
Overcoming risk: Allocating identified and unidentified risks
  • Warranties
    • Scope
    • Indemnification:
      • net assets
      • loss
      • beneficiary and tax impact
    • Vendor protections
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