Legal aspects: identifying good practices in business transfers
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2 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers Moderator : Marc Dufosset Partner, Copilot Belgium
3 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers Gaspard Brulé - Partner, VAUGHAN Avocats, France David Ryckaert - Partner, Simont Braun Lawfirm, Belgium Theis Klauberg - Attorney at law, bnt Klauberg Krauklis ZAB, Latvia Hartmut Schneider - Managing Partner, M & A Strategie GmbH, Germany & Poland
4 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers Gaspard Brulé Partner VAUGHAN Avocats France
5 Process not to miss: Preparatory work The purpose of this preparatory period is to avoid misunderstandings between Sellers and Buyers For a Seller Personal issues: capital gain tax / inheritance tax Data room (Seller s due diligence) Selecting a financial advisor For a Buyer Networking (find a target) Financing / Structuring Collecting information on the target and the market
6 Process not to miss: Letter Of Intent - LOI Main purposes Confidentiality / Exclusive right Main provisions Price and Method of calculation Main terms and conditions of the acquisition agreement: conditions precedent, price adjustements, earn out, Reps&Warranties Dealing with issues raised by a due diligence report Bank covenants Re-negociating Employment matters / Pollution (pitfalls)
7 Process not to miss: Reach an agreement A detailed LOI facilitates the drafting of the final acquisition documentation SPA Precedent conditions Agreement on price (instalments, Earn-out.) Reps & Warranties Reps and audited accounts Ceiling, Threshold vs. Deductible, Time limitation Process of indemnification Warranty (Bank warranty, insurance, escrow )
8 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers David Ryckaert Partner Simont Braun Lawfirm Belgium
9 Legal pitfalls Manage expectations on the disclosure of a data room From the letter of intent Throught the due diligence process Until the share purchase agreement
10 Legal pitfalls Knowledge qualifiers Discussion of some standard clauses and their legal consequences
11 Legal pitfalls Limitations on the seller s liability De minimis, cap, basket, franchise Bridging the gap using insurance products
12 Legal pitfalls Non compete in family businesses As seller As buyer As advisor
13 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers Theis Klauberg Rechtsanwalt, partner bnt attorneys-at-law Member of the bar associations of Estonia, Latvia, Lithuania, and Hamburg
14 Contents 1.Economies 2.Legal environment - Business as usual? - The devil and the details 3. Practice - General - M&A specific 4. Watch out! some examples 5. Dos and don ts
15 2011 GDP % FDI EUR (mio) Unemployment in % Concentration cases Estonia (2010) Latvia Lithuania Sources: Eurostat; EBRD; Bank of Estonia; Estonian Competition Authority, Competition Council of Latvia, Competition Council of Lithuania, Bank of Latvia, Bank of Lithuania
16 Legal- business as usual? - Re M&A: LT, LV, EE quickly transposed all principal European Community (EC) legislation into domestic law - M&A came into the Baltics in the 90s, often English terminology used and general processes follow the known standards
17 Legal the devil and the details - Three different legal systems - Different practices in each country - Countries in transition - Still existing practice dating back to Soviet times deviating from the black-on-write of legal texts
18 Factual particularities general - Are there The Baltic States? - differences Factual particularities general (focus LV, LT) -Seeking of short term gain still prevalent -Mistrust in (business) relationships more the norm than the exception -Few trade unions and collective agreements -Mixing of private (business) interests with political mandates not uncommon
19 Factual particularities- M&A specific - Few, since legal systems comparable to Western European ones, EU norms transposed. M&A processes taken from Western countries - Limited number of large deals - Vendor LDD still very rare - Data room: increasingly virtual data rooms - Prominent role of banks and decision makers within banks in distressed M&A scenarios
20 Watch out! (examples): -LT (ongoing): Consulting German buyer re acquisition of public limited company (non listed): negotiations after positive LDD, sellers continue negotiations w/o disclosing the arrest of shares 1 week prior to meeting -LV: Motivation of bank employees might influence, whether deal is possible + which advisors get the case - Consulting buyer re acquisition of real-estate company from Swedish investor after turn-around of the target (volume: 28 Mio EUR); bank employee forces buyer to change advisor due to personal issues with advisor - Some employees take over assets that the buyer did not want to acquire (e.g. claims)
21 Dos and don ts -Inform yourself don t rush! -Accept help don t be proud! -Accept particularities don t be ignorant! -Don t underestimate LV, LT, EE don t be arrogant! -Protect your interests don t be frivolous! re M&A: - Don t focus on legal aspects only!
22 Our Offices Bratislava Budapest Kyiv Minsk Nuremberg Prague Riga Tallinn Vilnius Warsaw Cooperation Bucharest Moscow Sofia
23 For further questions! bnt attorneys-at-law Alberta Iela 13, Riga, LV-1010 Tel Fax
24 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers RA Dr. Hartmut Schneider CEO M & A Strategie GmbH, Germany M & A Strategie Polska Sp. z o.o., Poland
25 Company Sale Transaction Process General Scheme of a Company Sales Process: PMI
26 Company Sale Contractual Arrangements NDA: Non-Disclosure Agreement MoU: Memorandum of Understanding LoI: Letter of Intent Exklusivity Agreement / Non-Solicitation Sale & Purchase Agreement Ltd. in Germany to be Notarized: 15 GmbHG
27 Company Sale Structure of SPA (Sale & Purchase Agreement) Parties - Scope of Agreement (Asset Deal / Share Deal) Purchase Price - Purchase Price Adjustment Warranties & Representations Liability, Indemnifications Non-Competition / Non-Solicitation Merger Control Approval, Confidentiality, Notices Cost, Taxes, Exhibits
28 Company Sale Pitfalls Crossborder Transactions In General: Different Languages / Different Cultures Different Legal Concepts (Statutory Law, Common Law, Islamic Law ) Different Meanings of the same Words: e.g.: Eigentum, Property, Propriété Different Formal Requirements, Notary Acts,...
29 Company Sale Pitfalls Crossborder Transactions Liability of Buyer in Share Deals: Germany: 25 HGB: Liability for Continuing the Company's Name 75 AO: Liability for Tax Debts 16 II GmbHG: Liability for Pending Shareholder Payments Product Liability (Product Liability Act - ProdHaftG) Producer's Liability ( 823 BGB) Remediation Duty for Contaminated Sites ( 4 III BBodSchG)
30 Company Sale Pitfalls Crossborder Transactions Liability of Seller in Share Deals: Warranties and Representations of Seller Existence and Ownership of Shares Corporate Law Issues (AoA, Commercial Register, List of Shareholders, No Insolvency, ) Contractual Relations, Stock Value, Receivables Employees, Collective Agreements Liabilities; Provisions for Pension Obligations Balance Issues and Equity Capital Tax Issues Change of Control Clauses Pending Lawsuits
31 Company Sale Pitfalls Crossborder Transactions Examples of Transaction Risks in Practice: Earn-Out Clauses Equity Capital Guarantee Price Adjustment Clauses Lack of Form Tax Audit by Tax Authorities Pending Lawsuits
32 Company Sale Pitfalls Crossborder Transactions Earn-Out Clauses I Agreement on a Purchase Price Dependent on EBIT Why? - Evaluation Uncertainty on future Market Development - Dependence on few Customers Minimum Purchase Price + Subsequent Increase after reaching Contractually Defined Objectives
33 Company Sale Pitfalls Crossborder Transactions Earn-Out Clauses II Too Optimistic" Plans are Dangerous: Buyer makes Earn-Out Installment Payments Dependent on the Achievement of the EBIT-Planning of the Seller up to (3) Years after Closing Buyer - or even Seller (continuing as CEO) - makes high Capital Investment and prevents or reduces Installments => Note: Define a Target EBIT as a Percentage rather than a Fixed Threshold: Otherwise, the Entire Earn-Out Rate is Zero (!)
34 Company Sale Pitfalls Crossborder Transactions Equity Capital Guarantee Seller must indeed know his own Company (!) Problem: Unreliable Head of Finance and Accounting Problem: Annual Financial Statements for the Future Transfer Date are made by the Buyer Seller has been rescinded as Managing Director + Former Commercial Director has been rescinded All Documentation only available inside Company => Seller: No more Influence on the Financial Statements => Evaluations not really litigable
35 Company Sale Pitfalls Crossborder Transactions Price Adjustment Clauses Closing Date Concept (Transfer Date) or Effective Date Concept (as in the Past). Proposal Counter-Proposal Dispute: Arbitrator or Neutral Evaluator decides e.g.: President of the Chamber of Commerce or the Institute of Chartered Accountants (IdW) => Exclusion of a Negative Purchase Price => No Liability for future Profitability
36 Company Sale Pitfalls Crossborder Transactions Lack of Form: Purchase Agreement: 15 III, IV GmbHG (Notarization) Obligations + Additional Agreements (!) + Assignment (Unity of Business Act) Sale of Real Estate: 311 b I BGB (Notarization) + Additional Agreements (!) (Unity of Business Act) If (only) 1 Party wants to connect different Agreements => Notarization => 139 BGB: Severability - In Doubt => Full Invalidity Beware of Side-Letters Obligation to transfer the entire Property 311 b (II), III BGB (Notarization)
37 Company Sale Pitfalls Crossborder Transactions Tax Audit by Tax Authorities: Additional Payments after Tax Audit Tax Audit: Long Time after Company Sale Company is Liable Retention of a final Purchase Price Installment? Seller should participate in the last Audit Discussion No Influence of the Seller and due to Retention or Warranty Obligations little Interest of the Buyer to keep Payments low => Repercussions for Income Based Price Adjustments!
38 Company Sale Pitfalls Crossborder Transactions Pending Lawsuits: Share Deal: Succession of the Company as a whole Proceedings concerning Issues of the Past Patent and Trademark Infringements, etc. => Possibly Risk for the whole Company or Business Model => Inclusion in Catalogue of Warranties (Is Seller still able to pay Damages after Years?) Buyer has to deal with all Pending Law Suits of the Past!
39 Thank you for attention!
40 16.15 > Workshop 3 Legal aspects: identifying good practices in business transfers Gaspard Brulé - Partner, VAUGHAN Avocats, France David Ryckaert - Partner, Simont Braun Lawfirm, Belgium Theis Klauberg - Attorney at law, bnt Klauberg Krauklis ZAB, Latvia Hartmut Schneider - Managing Partner, M & A Strategie GmbH, Germany & Poland
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