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Private Company Acquisitions: Negotiating and Navigating the Fraud Exception
Key Considerations for Drafting a Fraud Exception to an M&A Contractual Indemnification Provision
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Description
Could one party's optimism be another party's fraud? High profile busted deals remind us that, when fraud looms, all bets are off on those otherwise carefully crafted contractual provisions so typical in M&A deals.
In particular, for private equity and venture capital sellers, thoughtful limitations on liability could make the difference between a "good deal" and a "not-worth-it deal." For buyers, it could mean the difference between being a "visionary CEO"--or a "hapless CEO."
Our panel of seasoned M&A attorneys will illustrate the role of the fraud exception in private company acquisitions, highlighting negotiation and drafting strategies to help you deftly put the genie back into the 11th-hour bottle.
Listen as our panel discusses critical considerations when drafting a fraud exception to an indemnification provision, strategies that can be implemented for the seller or buyer when negotiating the fraud exception, and ways to juggle competing interests of multiple selling stockholders (e.g., lead vs. coattail investors).
Presented By

Mr. Deibert has broad experience representing companies, private equity firms, venture capital funds, investment banks and individuals in a variety of transactions and matters. He represents clients in a number of industries, including the financial services, semiconductor, technology, consumer products, and hospitality industries. Mr. Deibert's practice focuses on mergers and acquisitions, and he has been involved in numerous transactions buying and selling privately held and publicly traded businesses. His experience also includes representing companies, investors and investment banks in venture capital financings, securities offerings and other financing transactions.
Ms. McLean is a leading private equity lawyer with over 20 years of experience advising private equity funds and management teams on sophisticated and high-profile deals across the energy sector. Her practice focuses on private equity transactions, particularly portfolio company investments, acquisitions and divestitures of assets and companies, and joint ventures. Ms. McLean has been recognized as a leading dealmaker and influential woman in the energy sector. In 2023, she was recognized by The Deal as a “Top Women in Dealmaking” for Private Equity. She also serves on the Private Equity Editorial Advisory Board for Law360.

Ms. Stark has over 15 years of corporate experience in mergers and acquisitions, strategic investments, initial public offerings, proxy contests, and hostile takeovers. She also has experience advising private and public companies and their boards of directors on corporate governance matters.

Ms. Stark brings more than two decades of experience guiding companies through complex corporate transactions and strategic decisions involving Delaware corporate law. Her practice spans mergers and acquisitions, IPOs, proxy contests, asset sales, stock issuances and hostile takeovers. Ms. Stark advises both public companies and private equity funds and their portfolio companies in connection with mergers and acquisitions. She also counsels both public and private companies on corporate governance matters, including Delaware fiduciary duties, and the General Corporation Law of the State of Delaware. In addition, Ms. Stark has a strong capital markets practice, advising on IPOs, secondary offerings, and at-the-market transactions. She also regularly works with private equity and venture-backed companies on preferred stock and debt financings, as well as strategic investments and exits.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Live Online
On Demand
Date + Time
- event
Wednesday, April 24, 2024
- schedule
1:00 p.m. ET./10:00 a.m. PT
Outline
- What is a fraud exception, and who cares?
- Recent case law impacting fraud remedies in M&A
- Practical negotiation strategies
Benefits
The panel will review these and other highly relevant issues:
- What strategies can limit (for the seller) or preserve (for the buyer) the fraud remedy's "Sword of Damocles"?
- What critical considerations should counsel contemplate when drafting a fraud exception to an indemnification provision?
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