1. December 3, 2015 | Houston, Texas
Managing the Challenging Aspects of a Cross-Border M&A Transaction
Speakers: Jonathan B. Newton and William D. Davis II
December 3, | Houston, Texas

2. How to Approach a Cross-Border M&A Deal
Planning, Timing and Structuring
Pre-signing Phase
Diligence Phase
Negotiation and Documentation Phase
Closing and Post-Closing Phase
Compliance and Regulatory
US Imposed
Local – Compliance/Regulatory
Local – Liabilities
Post-Transaction Matters
Challenges in Enforcing Your Agreement
Post-Acquisition Integration
PAI Considerations
Q&A

3. Planning, Timing and Structuring

4. Phases to Your Cross-Border Transactions
Phase 1: Pre-Signing
Phase 2: Diligence
Phase 3: Negotiate/ Document
Phase 4: Closing and Post-Closing

5. Pre-Signing Phase – What are We Trying to Accomplish
What level of detail in LOI is too much?
Identify key approvals and local closing requirements
Consider cultural, legal, time zone and related issues
Review structure to minimize applicable taxes
Are you managing your side or the other side or both?
Establishing/negotiating precedent in the pre-contract phase
Have you assembled the right team?

6. Diligence Phase Risk assessments Determine goals
Identify key issues and determine how to present results
Scope, budget and timing change if structure/terms change
Preparing the other side for intrusive diligence
Not all parties have experience with intrusive due diligence
Cultural and national feelings may need to be managed
Confirm choice and enforceability of remedies for breached reps and warranties
Indemnity, escrow, insurance, etc.
To what degree are remedies practically achievable

7. Negotiation and Documentation Phase
Controlling the drafting of the documents is only first step
US style drafting v. European (or other) approach – regardless, “must haves” need to be included
List of ancillary agreements
What does local law require?
Consider umbrella agreement with local transfer documents
Translations?

8. Closing and Post-Closing Phase
What challenges?
One or multiple closings
“Chicken & Egg” issues
Wiring/Currency issues
Enforceability concerns
Consider delayed closing for certain jurisdictions
If banks involved, keep in mind KYC requirements
Are there any post-closing filings/registrations required?
Post-Acquisition Integration

9. Compliance and Regulatory

10. Layers of Compliance/Regulatory Concerns
Layer 1: US Imposed
FCPA
Anti-money laundering
Anti-terrorist related
Trade Sanctions
Layer 2: Local – Compliance / Regulatory
Foreign investment restrictions or approvals
Exchange controls/restrictions
Corporate regulatory compliance
Foreign anti-bribery/compliance laws
Layer 3: Local - Liabilities
Employment
Tax
Regulatory
Third-party claims

11. Post-Transaction Matters

12. Challenges in Enforcing Your Agreement
Preparing for disputes and your dispute resolution mechanism
Litigation or arbitration?
In the US or in a foreign country?
Choice of Law
Added complexity to post-closing money fights
Earn-outs and deferred payments
Net Debt adjustments
Indemnity clauses
Speaker details……………

13. Post-Acquisition Integration
What is it and what disciplines are involved?
Tax-driven?
Should always consider elimination/consolidation of entities
More challenging when many countries involved
What are the essentials to a successful integration?
Planning begins before Day 1
Planning includes all stakeholders
Planning includes detailed step plan with real timelines
Communicate interim guidelines
Take into account the target’s culture
Organized & cohesive multi-disciplinary team
What policies should you roll-out as part of the integration?
Ethical guidelines – FCPA, Anti-Money Laundering, Anti-Terrorism
Employee handbooks
Environment/human rights policies
Speaker details……………

14. PAI Considerations
Each discipline has a different view of what should be top of mind, underscoring the importance of coordinating and aligning the various stakeholders.

15. Q&A

16. Contact Information
Jonathan B. Newton
William D. Davis II
Partner, Houston
Partner, Houston