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Focus on Private Equity – July 2014

McDermott Will & Emery has released the July 2014 issue of Focus on Private Equity, which provides insight on issues surrounding private equity transactions and the investment life cycle across industries.  Articles in this issue include: Latin American Private Equity on the Rise Favorable macroeconomic trends and positive regulatory developments continue to make Latin America an attractive destination for private equity investors looking for acceptable returns in relatively stable emerging markets. Not surprisingly, some challenges remain for foreign private equity investors entering the region, but most of these risks should be manageable for investment teams and advisors with sufficient experience in those jurisdictions. Read the full article. Tax Considerations When Acquiring Non-U.S. Portfolio Companies—Mitigating Subpart F Inclusions Subpart F income can diminish returns for investors acquiring non-U.S. portfolio companies by increasing tax cost....

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Cross-Border Conversion of a Company in the European Union

Traditionally, a cross-border “migration” of a company from one European Union (EU) Member State to another EU Member State, while technically possible, has been cumbersome and costly.  Such a migration would involve either a wholesale move of the subject company’s business seat (i.e., the location of its chief executive office) or a cross-border merger of national companies could be considered.  But that has now changed.  Recently, however, the VALE judgment of the European Court of Justice issued on July 12, 2012 has opened the door for EU companies to take advantage of a cross-border “conversion” (i.e. , the transfer of the registered office from one jurisdiction to another, including a change of applicable law, without the requirement of winding up, liquidating the company ).  Even though the VALE judgment was handed down in 2012, the precise procedural rules, in particular how local commercial registers would apply the rulings of the VALE judgment,...

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Cœur Défense: the Chronicle of a Foretold Reform of the French Safeguard Proceedings

The end of a legal saga On April 7, 2014, the Commercial Court of Paris put an end to the Coeur Défense’s legal saga by acknowledging the implementation of the two safeguard plans adopted for Heart La Défense (HoLD), a French corporation, and Dame Luxembourg S.à r.l. (Dame), HoLD’s sole shareholder.  As a reminder, HoLD subscribed to a 1.64B-Euro loan in July 2007 in order to purchase “Coeur Défense”, the largest office building in Europe.  In 2008, further to Lehman Brothers’s bankruptcy, safeguard proceedings were initiated to the benefit of HoLD and Dame.  Under the safeguard plans, HoLD had to repay the principal of the loan on July 10, 2014 to Windermere XII, a French securitization mutual fund.  From the beginning of these proceedings, Coeur Défense has attracted the attention of French courts, authors and specialists due to its potential impact on French bankruptcy proceedings. The reform of the French safeguard proceedings: the rebalancing of powers...

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Deconstructing a Letter of Intent for Business Owners, Part 1

I recently appeared on an episode of the Private Equity FunCast: “The Art (and Science?) of the LOI” to talk deal terms with private equity masters Devin Mathews and Jim Milbery.  This well-spent hour got me thinking about how confusing some of the deal terms in a Letter of Intent (LOI) must be for first time sellers.  As a result, we are launching a series of blog posts that will deconstruct the LOI into easily understandable parts. In this series, we will be covering the following topics: The purchase price and how it is calculated; The structure of the transaction; Key tax issues; Key deal terms, including working capital, representations and warranties, and indemnification/escrow arrangements; and The legal “mumbo-jumbo.” We covered much of this during the FunCast, but will take a deeper dive here with a more intense focus. The Purchase Price and how it is Calculated For most business sellers the purchase price is the purpose of the deal – cashing in on...

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Focus on Private Equity – April 2014

McDermott Will & Emery has released the April 2014 issue of Focus on Private Equity, which provides insight on issues surrounding private equity transactions and the investment life cycle across industries.  Articles in this issue include: Private Equity Firms Face Potential Liability Under Plant Closing Laws Private equity firms risk potential liability for Worker Adjustment and Retraining Notification Act violations. Case examples demonstrate the need for proactive activity management, including observing corporate formalities, establishing and filling the director and officer positions of all entities, permitting the operating company management to make the decisions regarding employment terminations and plant closings, and clearly communicating and documenting these activities, to help avoid or quickly exit litigation. Read the full article. Incentivising Management Across the Pond U.S. private equity investors are increasingly looking outside the...

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Equity Investors: Be ForeWARNed

The Worker Adjustment Retraining and Notification Act (WARN Act) requires certain employers to give employees 60 days’ notice of plant closings and mass layoffs.  The goal of the WARN Act is to “provide workers and their families transition time to adjust to the prospective loss of employment, to seek and obtain alternative jobs and, if necessary, to enter skill training or retraining that will allow these workers to successfully compete in the job market.”  Employers who violate the WARN Act are liable to affected employees for up to 60 days of compensation and benefits. On December 10, 2013, the Second Circuit in Guippone v. BH S&B Holdings LLC addressed whether a holding company (HoldCo) and certain investors (Investors) should be deemed “employers” under the WARN Act, and thus liable for violations thereof.  The Investors created various entities to purchase and manage Steve & Barry’s Industries, Inc., which it acquired out of bankruptcy.  HoldCo...

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Delaware Law to Provide for Ratification of Defective Corporate Acts as of April 1, 2014

It is quite common during the course of legal due diligence to discover that a target company has issued more stock than it had legally authorized through its certificate of incorporation.  Many companies, particularly emerging growth companies, are often too preoccupied with ambitious growth plans and raising critical private capital and overlook basic corporate housekeeping.  Or they dole out lots of equity to employees and business partners in order to conserve much needed cash, but forget that there is actually a legal limit to the number of shares they can grant.  These and other legal flaws, or “defective corporate acts,” can exist undetected for years in privately held companies, but they come to light at the worst possible time – when the company is being sold or when a significant capital raise is being undertaken.  Previously, the lawyers would advise that these past errors placed a troublesome legal cloud over the company that presented risks that...

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Key Takeaways from McDermott’s 2014 HPE Symposium

The eighth annual McDermott Will & Emery Healthcare Services Private Equity (HPE) Symposium was held on March 12-13, 2014, at the JW Marriot Marquis in Miami, Florida. McDermott’s Health and Private Equity practices hosted a record crowd of over 350 top private equity professionals, investment bankers and company management teams from around the country. Speakers from a variety of sectors shared their insights and experiences on the state of private equity investing in health care services. Some of the key takeaways included: Operating partners of private equity (PE) firms believe that add-on acquisitions and cost-saving efficiencies will provide the most value appreciation for existing health care services platform businesses for the next 12 months; Most panelists believe that prospects for growth in the health care sector over the next three to five years vary significantly by sector, with health information technology and post-acute care trending...

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Insights for Driving Value Through Operational Performance of Private Equity Investments

The 13th annual Beecken Petty O’Keefe & Company Private Equity Conference took place on Friday, February 21st.  McDermott, a lead sponsor of the event, hosted a panel of leading, mid-market private equity (PE) funds to discuss how their operationally-focused strategies drive value as they pursue new investments.  Moderated by McDermott partner and private equity lawyer Larry Bronska, the panel included senior deal makers from Sterling Partners, RoundTable Healthcare Partners, Blue Sea Capital and AUA Private Equity.  Speaking to a packed house, the group shared their insights and experiences.  Some of the key takeaways included: Operating partners of PE firms often play a significant role in front-end diligence and the courting of target management teams. The most effective deal execution teams include integrated efforts of both the fund’s investment professionals and the operating professionals. Identified cost savings and operating improvements often...

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Inside M&A – Winter Issue

McDermott recently released the Winter 2014 issue of Inside M&A, which focuses on current issues surrounding mergers and acquisitions.  Articles in this issue include: Delaware Court of Chancery Upholds Forum Selection Bylaws During the last several years, shareholders have challenged nearly every merger and acquisition (M&A) transaction that targeted a U.S. public company where the value of the transaction was greater than $100 million and the offer price was at least $5 per share.  As a result of this litigation explosion, many corporations have adopted forum selection bylaws that require such challenges to be brought in the target company’s state of incorporation.  Chancellor Leo E. Strine Jr.’s decision in Boilermakers Local 154 Retirement Fund v. Chevron Corp. to uphold such bylaws is an important step toward reducing the burden and expense of litigation over M&A deals. Read the full article. Crying Revlon: Delaware Courts Dismiss Claims in...

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