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Legal Aspects of Global Business: Protecting your business interests. Tyler T. Ray, Esq. Duffy & Sweeney, LTD tray@duffysweeney.com. Creating a Due Diligence Framework. What is due diligence? Who are the parties, what are the goals

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legal aspects of global business protecting your business interests

Legal Aspects of Global Business: Protecting your business interests

Tyler T. Ray, Esq.

Duffy & Sweeney, LTD

tray@duffysweeney.com

slide2

Creating a Due Diligence Framework

  • What is due diligence?
  • Who are the parties, what are the goals
  • Important diligence points to consider in international transactions
  • How the Due Diligence can impact the deal
what exactly is due diligence

"Due diligence" is the investigation into the business, legal and financial affairs of the entity (“target”)

  • This target investigation occurs in connection with a wide variety of transactions, including financings and acquisitions of shares or assets, on an international scale
  • Requires “Team”
  • Identify risk and assess accordingly
What Exactly is “Due Diligence”?
slide4

The General Goals of Due Diligence are:

  • Evaluating whether the price to be paid in a transaction is in fact fair
  • Determining the strengths and weaknesses of the target company
  • Concluding whether there are significant problem areas or "deal breakers;" and
  • Assessing whether the contemplated transaction is likely to meet the originally defined objectives.
parties in due diligence

Employees

  • Trade Unions
  • Shareholders
  • Creditors
  • Vendors
  • Customers
  • Government
  • Society
Parties in Due Diligence
international transactions

Due Diligence Request List – a document that will review all areas of the target company, such as:

    • Legal
    • Personnel
    • Financial Operations / Accounting
    • Tax
    • Marketing
    • Property and Equipment
    • Business Operations
    • Joint Ventures / Alliances / Partnerships
International Transactions
important issues in international deals

Successor liability – minimizing potential liability for prior activities of the target company

  • Identifying existing and avoiding future compliance issues
  • Assessing timeline and cost of post-acquisition compliance; and
  • Assisting in integration of the target’s business into the business of the acquiring company
Important Issues in International Deals
slide8

Important Issues in International Deals

  • The nature and type of target’s international commercial activities;
  • The target’s affiliates, customers, agents, distributors, and export destinations;
  • The target’s suppliers and the nature and type and origin of raw materials or finished goods sourced by the target
  • Prior enforcement actions, prior disclosures, and legal advice; and
  • Existing compliance and recordkeeping programs
hot spots

Target Structure

    • Tax
  • Business Issues
    • Cash Flow
    • Customer Base
  • Import / Export
  • Litigation
    • Product Liability
  • Intellectual Property
    • Infringement
Hot Spots
purchase agreement

Representations and Warranties

    • Materiality Qualifiers
    • Knowledge Qualifiers
  • Indemnification
    • Carve-Outs
Purchase Agreement
approaches for dealing with results of due diligence

Valuation Reduction

  • Escrow
  • Voluntary Disclosure
  • Indemnification
  • Post-closing Cooperation
  • Stripping “offending” Assets
Approaches for Dealing with Results of Due Diligence
questions
Questions

Tyler T. Ray

tray@duffysweeney.com