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Best regards
Zmags
M&A Boot Camp Training Sessions
Summer 2020
M&A Boot Camp training sessions
Acquiring privately held businesses
Hogan Lovells faculty:
Rick Climan, Keith Flaum, Jane Ross, and Chris Moore
Table of Contents
1. Program outline 3
2. Introductory materials 5
3. Balance sheet of hypothetical target company 13
4. Deal structures for acquiring a privately held business 15
5. Illustrative comparison of income tax consequences: stock sale vs. asset sale 21
6. Chart comparing alternative deal structures for acquiring privately held businesses 23
7. Private company acquisition timeline
M&A Boot Camp Training Sessions Summer 2020
M&A Boot Camp training sessions Acquiring private
TAB 1 Program outline 3
M&A Boot Camp training sessions: Acquiring privat
TAB 2 Introductory materials 5
M&A Boot Camp Faculty Rick Climan Partner, Sil
How Do We Distinguish Among M&A Deals? • Charact
How Do We Distinguish Among M&A Deals? 1. Is the
Differences Between Acquisitions of Private and P
Equity Value vs. Enterprise Value — Assume T
Strategic vs. Financial Buyers Strategic
Cash vs. Buyer’s Stock as Acquisition Currency Ca
TAB 3 Balance sheet of hypothetical target compan
Balance sheet of hypothetical target company (“T”
TAB 4 Deal structures for acquiring a privately h
Example #1 Purchase of Stock for Cash Purchaser $
Example #2 Purchase of Assets for Cash Purchaser
Example #3A Forward Cash Merger Purchaser $$$
Example #3B “Forward Subsidiary” Cash Merger Pur
Example #3C “Reverse Subsidiary” Cash Merger Pur
TAB 5 Illustrative comparison of income tax conse
Illustrative comparison of the federal income tax
TAB 6 Chart comparing alternative deal structures
Structuring the Acquisition of a Privately Held D
TAB 7 Private company acquisition timeline
Sample acquisition chronology Private target
TAB 8 Negotiating the acquisition of a privately
NEGOTIATING THE ACQUISITION OF A PRIVATELY HELD B
NEGOTIATING THE ACQUISITION OF A PRIVATELY HELD B
generally speaking, the adjusted basis of the ass
C. Merger 1. Types of mergers a. “S
II. BASIC CHRONOLOGY OF AN ACQUISITION TRANSA
2. Confidentiality agreement may also be nee
G. Confidential information that recipient is
B. Hazards of using a fully binding letter of
V. ARCHITECTURE OF THE DEFINITIVE ACQUISITION
L. General or “miscellaneous” provisions VI
3. Shares of the acquirer’s stock a. Pa
i) Restrictions imposed under federal securi
4. Parties standing behind the
the acquirer is to issue a promissory note or sto
6. Delivery of legal opinion by counsel for
This outline is not intended to be exhaustive. It
TAB 9 Pricing formulations in stock-for-stock mer
Pricing formulations in “stock-for-stock” mergers
Assumed Facts – Assumed Facts: – Acqui
Fixed Exchange Ratio (2:1) Without “Collar”
Fixed Dollar Value ($300 Million) Without “Collar
Fixed Exchange Ratio (2:1) With “Collar” (at $10/
Fixed Dollar Value ($300 Million) With “Collar” (
Summary Comparison of Pricing Formulations
TAB 10 The three basic building blocks of the acq
The three basic building blocks of the acquisitio
Introduction to Representations & Warranties W
Parties’ Mindsets in Negotiating Representations
Types of Representations & Warranties “Catch-all
Types of Representations & Warranties Listing r
Typical Qualifications in Representations & Warra
Typical Qualifications in Representations & Warra
Typical Qualifications in Representations & Warra
Disclosure Schedule What is the function of t
Effect of References to the Disclosure Schedule i
Pre-Closing Covenants What’s the difference b
Pre-Closing Covenants of Target Sample pre-clos
Pre-Closing Covenants of Buyer Sample pre-closi
Pre-Closing Covenants What special provisions m
Closing Conditions What’s a closing condition?
Closing Conditions Parties’ mindsets in negotiat
Closing Conditions Sample closing condition – “b
Closing Conditions “Bring down” condition (cont
TAB 11 Indemnification provisions in agreements f
Indemnification provisions in agreements for the
Introduction to Indemnification What is indemn
Introduction to Indemnification Interplay betw
Introduction to Indemnification Is indemnific
Indemnification Obligations Sample Indemnificati
Indemnification Obligations When does the obli
Indemnity Matters What are typical matters tha
Common Limitations on Indemnification Time lim
Common Limitations on Indemnification Liabilit
Other Limitations on Indemnification Effect of
Other Limitations on Indemnification (cont’d) B
TAB 12a Sample merger agreement for the acquisiti
Exhibit 2.1 AGREEMENT OF MERGER among
TABLE OF CONTENTS
TABLE OF CONTENTS (CONTINUED)
TABLE OF CONTENTS (CONTINUED)
TABLE OF CONTENTS (CONTINUED)
LIST OF EXHIBITS AND SCHEDULES EXHIBITS Exhi
AGREEMENT OF MERGER THIS AGREEMENT OF MERGER (th
1.4 Certificate of Incorporation and Bylaws; Dire
(iv) each share of Series C Preferred
deferred inventory costs associated with deferred
(vi) The “Series A Per Share Shortfall Amount” sh
Stockholders' Agent Escrow Fund with respect ther
that shall be included in “One Year Bookings” sha
(c) Notwithstanding anything to the c
Stockholders' Agent. If the Stockholders' Agent d
(b) Loss of Dissenting Share Status. Notwithstand
letter of transmittal shall include a request for
(h) Withholding. Each of the Payment Agent, Paren
2.2 Charter Documents; Records. The
the date on which such Company Option was granted
(e) Legal Issuance. All outstanding shares of Com
accounts receivable that have arisen since Decemb
(e) the Company has not amended or wa
(p) the Company has not commenced or
(b) Inbound Licenses. Part 2.10(b) of the Disclos
(ii) each Company Employee who is or
(iii) no interference, opposition, re
(k) No Harmful Code. None of the software (includ
(o) Personal Data. Part 2.10(o) of the Disclosure
(ix) each Company Contract relating t
accurate and complete: (i) description of the mat
terms and requirements of the respective Governme
(f) Tax Holidays. There are no (and there have ne
2.15 Employee and Labor Matters; Benefit Plans.
(f) Delivery of Documents. As applicable with res
Employee Plan can be amended, terminated or other
(n) Independent Contractors. Part 2.15(n) of the
2.17 Insurance. Part 2.17 of the Disc
2.20 Authority; Binding Nature of Agreement; Inap
(e) result in the imposition or creat
(b) Information Statement. The information suppli
3.4 Legal Proceedings. There is no pe
(f) the Company shall not amend or wa
(p) the Company shall not commence or
4.5 Termination of Certain Employee Benefit Plans
contemplated by this Agreement, and to submit pro
(b) Parachute Payments. As promptly as practicabl
5.7 Amendment to Certificate of Incor
6.4 No Material Adverse Effect. Since
liabilities (including current and long term liab
(l) a legal opinion executed by Gunderson Dettmer
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF TH
(b) by Parent if the Closing has not
(g) by Parent if the Required Merger
(d) Intentional Misrepresentation; Fraud. Notwith
(v) the exercise by any stockholder o
9.4 No Contribution. Each Indemnitor
10. MISCELLANEOUS PROVISIONS 10.1
“Stockholders' Agent Escrow Agreement”) as design
If to the Company: Mazu Networks, Inc. 125 Cambr
10.8 Governing Law; Dispute Resolution.
10.11 Waiver. No failure on the part
10.18 Construction. (a) Gender; Etc.
The parties hereto have caused this Agreement to
EXHIBIT A CERTAIN DEFINITIONS For purposes of t
Company Employee Plan. “Company Employee Plan” sh
Confidentiality Agreement. “Confidentiality Agree
Environmental Licenses. “Environmental License” m
Intellectual Property Rights. “Intellectual Prope
(taken as a whole), capitalization, operations, r
Series A Preferred Stock. “Series A Preferred Sto
AN
EXHIBIT B DISPUTE RESOLUTION PROCEDURES Subject
(d) If the Stockholders' Agent in the
(iv) No arbitrator shall have any pas
EXHIBIT C FORM OF CERTIFICATE AMENDMENT
FOURTH: Thereafter pursuant to a reso
TAB 12b Sample merger agreement for the acquisiti
DealPointData.com Aquantia Corp./Marvell Technolo
TABLE OF CONTENTS
TABLE OF CONTENTS (CONTINUED)
EXHIBITS Exhibit A - Certain Definitions Exhibi
writing each of the conditions set forth in Secti
reasonably necessary, including obtaining all rea
transmittal and instructions shall be as reasonab
Consideration delivered to any public official pu
Company nor any of the other Acquired Companies o
voting or registration of, or restricting any Per
securities of any of the Acquired Companies; or (
(c) The Acquire
The Company has Made Available to Parent copies o
have) an ownership interest, or an exclusive lice
and enforceable, except as would not, individuall
(g) Neither th
handled by authorized third parties acting on beh
bonus or similar payments consistent with past pr
any of the Acquired Companies has made or receive
Material Contract; or (C) give any Person the rig
Sheet (including any notes to the Company Balance
U.S. Export and Import Law or Foreign Export and
before the Closing Date have been or will be time
withheld and has, within the time and in the mann
need to be conducted in connection with any of th
noncompetition agreement, nonsolicitation agreeme
Allegation”) has been made against any person who
Title IV of ERISA or Section 412 of the Code; (ii
(b) Since Janu
the legal, valid and binding obligation of the Co
thereof and subject to the limitations, qualifica
Transactions will: (a) conflict with or result in
a written notice to Parent stating that it is wit
(iii) amend or waive any of
Acquired Company, or incur any indebtedness to, o
(xix) enter into any Contrac
reasonably be expected to have or result in a Mat
information in connection with an Acquisition Pro
Companies) which, if taken by the Company, would
and unanimously approved the Contemplated Transac
“Recommendation Change Notice”) (1) stating that
Company’s stockholders under applicable Delaware
withdrawal or modification of the Company Board R
Converted RSU issued pursuant to this Section 5.3
period during which shares may be purchased) shal
(b) With respe
directors and officers occurring prior to the Eff
satisfied, then Parent and the Company shall forg
such party’s employees to the extent required und
5.10 Resignation of Officers
as of the foregoing dates: (i) all “Material Adve
(b) The CFIUS Condition shall have been satisfied
(b) No tempora
(c) by either
(i) by the Com
disclosed, announced, commenced, submitted or mad
occasion, whether or not such fee may be payable
9.2 Waiver. (
by motion or other request for leave from such co
behalf of the Company’s stockholders only by the
with a copy (which shall not constitute notice) t
(c) As used in
IN WITNESS WHEREOF, the parties have caused this
EXHIBIT A CERTAIN DEFINITIONS For purposes of t
limited to the HSR Act, the Sherman Act (as amend
“Company Associate” means any current or former e
“Company IP” means: (a) all Intellectual Property
“Company Technology” means all IT Systems and Com
“DOJ” means the Antitrust Division of the U.S. De
“Federal Antitrust Laws” means the merger regulat
“Hazardous Materials” means any substance, materi
server-based application, mobile application, clo
determining whether a Material Adverse Effect has
“Open Source Software” means software that is dis
related parties in favor of the Acquired Companie
“Significant Subsidiary” means, with respect to a
“Takeover Statute” has the meaning assigned to su
Company’s board of directors who votes on such ma
EXHIBIT B PERSONS ENTERING INTO SUPPORT AGREEMEN
EXHIBIT C CERTIFICATE OF INCORPORATION OF THE SU
ARTICLE VI In furtherance a
TAB 13 Drafting and negotiating pointers for juni
Associate Training Materials M&A “Nuggets” & Car
REPRESENTATIONS & WARRANTIES; SURVIVAL; NON-RELIA
This is something of a catch-all provision pursua
Let me read you the type of language that you sho
and that the buyer, therefore, has the right to r
the closing. So there is no post-closing indemnif
CLOSING CONDITIONS/“WALK” RIGHTS The “Bring-Down
some practitioners may not fully appreciate the i
Sound complicated? Well I suppose it is, at least
conditioned on the target company not having expe
One important difference relates to the time peri
representations in an acquisition agreement, incl
M&A Cartoon: More on MACs [2013] M&
INDEMNIFICATION; SANDBAGGING The Word “Indemnify
Let me give you some language that makes it clear
to “fraud or willful misconduct,” for example. Th
Second, sometimes consequential damages are the o
In the classic sandbagging scenario, the buyer do
One possible explanation is that some practitione
M&A Cartoon: Negotiating the Causal Nexus Verbiag
MISCELLANEOUS Third-Party Beneficiaries [2005]
But the lesson is clear. Lawyers for the parties
again, my focus today will be limited to studies
Now, what is buyer power ratio? The buyer power r
bid for the target company in which the target co
TAB 14 M&A jargon 270
M&A Jargon Terms introduced and explained in M&A
M&A Jargon Terms introduced and explained in M&A
M&A Jargon Terms introduced and explained in M&A
TAB 15 ABA Private Target M&A Deal Points Study (
TAB 16 “Buyer Power Ratio” Deal Points Study (Rel
Impact of “Buyer Power Ratio” on
CONTENTS ABOUT THIS STUDY AND THE “BUYER POWER R
ABOUT THIS STUDY AND THE “BUYER POWER RATIO”(cont
DRAFT TERMINOLOGY USED IN THIS PRESENTATION
Representations & Warranties
“No undisclosed liabilities” representation Sam
“No undisclosed liabilities” representation
“10b-5” or “full disclosure” representation Sam
“10b-5” or “full disclosure” representation
“Accuracy of representations” condition – time
“Accuracy of representations” condition – timing
“Accuracy of representations” condition –
“Accuracy of representations” condition – materia
Indemnification and Related Provisions
“Sandbagging” Sample provisions: pro-sandbaggi
“Sandbagging” ! !! % ,
“Non-reliance” clause Sample provision: Non-r
“Non-reliance” clause ! !! %
“Consequential” damages exclusion ABA Data (2012
IP cap in excess of escrow – in acquisitions
IP cap in excess of escrow in acquisitions of tec
Buyer's contractual obligation to mitigate losses
Buyer's indemnifiable losses reduced by tax benef
Buyer's indemnifiable losses reduced by tax benef
The number of transactions in each category fo
TAB 17 Caveats 365
Caveats • These materials are intended merely to
Alicante Amsterdam Baltimore Beijing Birmingham B