Identifying Concerns and Overcoming Risk in European M&A Opportunities Marc Fredj Simmons & Simmons Tel Aviv, Israel 16 June 2010 ACC ISRAEL ANNUAL CONFERENCE.

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Presentation transcript:

Identifying Concerns and Overcoming Risk in European M&A Opportunities Marc Fredj Simmons & Simmons Tel Aviv, Israel 16 June 2010 ACC ISRAEL ANNUAL CONFERENCE

2 / Doc ID: ppt © Simmons & Simmons 2009 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

3 / Doc ID: ppt © Simmons & Simmons 2009 Identifying concern: Access to information Auctions vs exclusivity situations Private vs listed targets NDAs –Signatories –Vendor protection Timing of disclosure

4 / Doc ID: ppt © Simmons & Simmons 2009 Identifying concern: Due Diligence General purpose Specific purpose Types of due diligence – coordinating Scope

5 / Doc ID: ppt © Simmons & Simmons 2009 Identifying concern: Due Diligence Materiality Vendor due diligence Data Rooms Communicating results

6 / Doc ID: ppt © Simmons & Simmons 2009 Identifying concern: Disclosure Legal duty – contractual obligation General vs Specific Fair disclosure Qualifications (materiality, knowledge) Management’s position

7 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Withdrawing from transaction Pre-contractual stage: –good faith –break fees Contractual stage: –conditions precedent (validity; benefit) MAC Clauses Breach of warranties

8 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Adjusting value Price Adjustment: –price determinable –recourse to experts –recovery: claims, escrow, deferred payments

9 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Adjusting value Earn Outs: –determination –neutralizing certain changes –tax treatment

10 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Allocating identified and unidentified risks Weaknesses of legal protections: –misrepresentation –eviction –hidden defects

11 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Allocating identified and unidentified risks Indemnities: –when to use –difference with warranties

12 / Doc ID: ppt © Simmons & Simmons 2009 Overcoming risk: Allocating identified and unidentified risks Warranties –Scope –Indemnification: –net assets –loss –beneficiary and tax impact –Vendor protections

13 / Doc ID: ppt © Simmons & Simmons 2009 Any questions please contact: