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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Wednesday, July 29, 2020

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will prepare M&A deal counsel to draft contracts to protect sellers from post-closing liability. The panel will discuss how courts have analyzed different limitation of liability provisions and how they impact buyers and sellers.

Faculty

Mark J. Mihanovic
Partner
McDermott Will & Emery, LLP

Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions involving companies in a broad range of industries. He has substantial experience advising corporate boards of directors and management regarding fiduciary duties (including in connection with potential change in control transactions and consideration of "poison pill" stockholders rights plans) and corporate governance issues. He advises publicly-traded companies and investment banks and other financial advisers with respect to a wide variety of securities law compliance matters.

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Martin B. Robins
Partner
FisherBroyles, LLP

Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual property (including licensing, compliance and DMCA) and information technology/data security areas. He represents public and private clients of all sizes and in all industries ranging from Fortune 50 multinational firms to substantial private companies to start-ups to individual executives. His work encompasses transactions of all sizes and covers a wide array of transactions including business acquisitions, shareholder buy/sell agreements bank and similar financing, software licenses and computer/telecom hardware procurements, joint ventures, equipment and real estate leases, patent licenses, outsourcing and managed service contracts. He also publishes extensively in a number of legal journals and presents at legal conferences.

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G. Thomas Stromberg
Partner
Kaye Scholer

He concentrates in mergers and acquisitions, private equity, joint ventures, corporate finance, and corporate governance. He is a frequent speaker on various topics, including drafting techniques.

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Description

Effective limitation of liability clauses in M&A agreements thwart dissatisfied parties who may attempt to evade the contractual limits. In today's economic environment, such parties have a greater incentive than before to pursue such evasion and perhaps more potential opportunities to do so. Such parties may assert allegations of fraud or misrepresentation and/or claim inaccuracies of pre-contractual representations and contractual warranties. They may also assert claims based upon actual or purported public policies associated with the COVID-19 situation and other evolving legal areas.

For seller's counsel, the goal is to limit all potential claims of breaches of the representations and warranties set forth only in the four corners of the agreement. Deal counsel must craft contract language to maximize the likelihood of enforcement of the exclusive remedy provisions in the contract, minimizing risk to the seller of contractual and extra-contractual post-closing liability in M&As.

Listen as our authoritative panel of M&A attorneys prepares counsel to craft contracts that limit contractual and extra-contractual liabilities, focusing on sources of existing and potential new extra-contractual liabilities, ways to protect parties through due diligence, voluntary disclosure and discussion, pricing, holdback/"basket" structuring, auction and negotiating processes, and exclusive remedy and extra-contractual representation disclaimer and waiver provisions.

Outline

  1. Sources of extra-contractual liability: traditional and potential new ones; innovative uses of force majeure and MAC provisions
  2. Costs associated with delays and impediments resulting from increasingly aggressive application of traditional doctrine in recessionary environment--e.g. antitrust, employment, environmental, etc.--and simple delays resulting from backlogged agencies
  3. Protecting parties through due diligence, disclosure, pricing/breakup and other fee, auction and negotiation process
  4. Protecting parties through exclusive remedy and extra-contractual representation waiver provisions
  5. Lessons from recent case (and statutory/regulatory) law

Benefits

The panel will review these and other critical questions:

  • What are best practice drafting, negotiating, due diligence and pricing strategies for limiting contractual and extra-contractual liabilities when drafting M&A agreements?
  • How have the courts analyzed exclusive remedy and extra-contractual representation and waiver provisions in M&A contracts?
  • How can parties achieve protection from extra-contractual liabilities during the negotiation process?