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Business Law— the Life of a Deal Business Law— The Life of a Deal Cosponsored by the Business Law Section Friday, November 3, 2017 8:30 a.m.–5:15 p.m. 5.75 General CLE credits and 1 Ethics credit BUSINESS LAW—THE LIFE OF A DEAL SECTION PLANNERS Lorie Harris Hancock, Hancock Hughey LLP, Sisters, OR Benjamin Kearney, Arnold Gallagher PC, Eugene, OR Genevieve AuYeung Kiley, Emerge Law Group, Portland, OR Jeffrey Tarr, Sussman Shank LLP, Portland, OR Kara Ellis Tatman, Perkins Coie LLP, Portland, OR Thomas Tongue, Schwabe Williamson & Wyatt PC, Portland, OR Tyler Volm, Barran Liebman LLP, Portland, OR OREGON STATE BAR BUSINESS LAW SECTION EXECUTIVE COMMITTEE Justin B. Denton, Chair David R. Ludwig, Chair-Elect Kenneth R. Haglund, Past Chair Valerie Sasaki, Treasurer Genevieve AuYeung Kiley, Secretary Lorie Harris Hancock Benjamin M. Kearney Benjamin G. Lenhart Douglas Lindgren David G. Post Jeffrey S. Tarr Kara Ellis Tatman Thomas Michael Tongue Tyler John Volm Kyle D. Wuepper The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2017 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Business Law—The Life of a Deal ii TABLE OF CONTENTS Schedule . v Faculty . vii 1. Recent Developments in Delaware Corporate Law . 1–i — Michael Allen, Richards Layton & Finger PA, Wilmington, Delaware 2. Before the Deal . 2–i — Amanda Loupin-Bartlett, Schwabe Williamson & Wyatt PC, Portland, Oregon — Meghan Williams, Miller Nash Graham & Dunn LLP, Vancouver, Washington 3. Best Drafting Practices in Operating Agreements: Buy-Sell Provisions . 3–i — Heather Kmetz, with Assistance of Amy Geerhart, Sussman Shank LLP, Portland, Oregon 4. Best Drafting Practices: Common M&A Drafting Mistakes . 4–i — Marco Materazzi, Emerge Law Group, Portland, Oregon 5. Follow the Money: Partnership Distribution, Allocation, and Tax Provisions— Presentation Slides . 5–i — Mark LeRoux, Tonkon Torp LLP, Portland, Oregon 6. Updates and Trends in M&A—Presentation Slides . 6–i — Kara Tatman, Perkins Coie LLP, Portland, Oregon — Roy Tucker, Perkins Coie LLP, Portland, Oregon 7. Negotiating Key Terms in M&A Transactions . 7–i — Matthew Larson, Hathaway Larson LLP, Portland, Oregon — Erich Merrill, Jr., Miller Nash Graham & Dunn LLP, Portland, Oregon 8. How to Avoid Post-Closing Disputes . 8–i — The Honorable David Brewer, Eugene, Oregon — Donald Churnside, Gaydos Churnside & Balthrop PC, Eugene, Oregon 9. Malpractice and Ethics Considerations for the Transactional Lawyer . 9–i — Holli Houston, Professional Liability Fund, Tigard, Oregon — Kenneth Landis, Attorneys’ Liability Assurance Society Inc., Chicago, Illinois Business Law—The Life of a Deal iii Business Law—The Life of a Deal iv SCHEDULE 7:30 Registration 8:30 Recent Developments in Delaware Corporate Law Michael Allen, Richards Layton & Finger PA, Wilmington, DE 9:30 Before the Deal: Nondisclosure Agreements, Letters of Intent, and Preliminary Due Diligence Amanda Loupin-Bartlett, Schwabe Williamson & Wyatt PC, Portland OR Meghan Williams, Miller Nash Graham & Dunn LLP, Vancouver, WA 10:30 Break 10:40 Breakout A: Best Drafting Practices: Buy-Sell Provisions in Operating Agreements Heather Kmetz, Sussman Shank LLP, Portland, OR Breakout B: Best Drafting Practices: Common M&A Drafting Mistakes Marco Materazzi, Emerge Law Group, Portland, OR 11:25 Transition Break 11:30 Breakout C: Operating Agreements: Allocation and Tax Issues Mark LeRoux, Tonkon Torp LLP, Portland, OR Breakout D: Updates and Trends in M&A Kara Tatman, Perkins Coie LLP, Portland, OR Roy Tucker, Perkins Coie LLP, Portland, OR 12:30 Lunch F James B. Castle’s Leadership Award Ceremony F Student Scholarship Awards F Business Law Section Annual Meeting 2:00 Negotiation Exercise Matthew Larson, Hathaway Larson LLP, Portland, OR Erich Merrill, Jr., Miller Nash Graham & Dunn LLP, Portland, OR 3:00 How to Avoid Post-Closing Disputes The Honorable David Brewer, Eugene, OR Donald Churnside, Gaydos Churnside & Balthrop PC, Eugene, OR 4:00 Break 4:15 Common Risk Management and Ethical Issues Affecting Business Lawyers Holli Houston, Professional Liability Fund, Tigard, OR Kenneth Landis, Attorneys’ Liability Assurance Society Inc., Chicago, IL 5:15 Adjourn Business Law—The Life of a Deal v Business Law—The Life of a Deal vi FACULTY Michael Allen, Richards Layton & Finger PA, Wilmington, DE. Mr. Allen is a director in the firm’s Corporate Department and a member of the department’s Corporate Advisory Group. He counsels corporations, officers, directors, board committees, and stockholders in connection with a wide variety of transactional and advisory matters, including mergers and acquisitions, divestitures, recapitalizations, proxy contests, stockholder meetings, and corporate governance issues. Mr. Allen’s practice also involves rendering legal opinions on Delaware corporate law issues. Mr. Allen is a frequent speaker regarding Delaware law practice and developments. He is admitted to practice in Delaware. The Honorable David Brewer, Eugene, OR. Donald Churnside, Gaydos Churnside & Balthrop PC, Eugene, OR. Mr. Churnside represents clients in trials, hearings, and mediation and arbitration with matters relating to general business, intellectual property, estate planning, creditors’ rights, real estate, construction, and land use. Mr. Churnside is past chair of the Oregon State Bar Legal Ethics Committee, has served on the Oregon State Bar Debtor- Creditor, Real Estate & Land Use, and Business Law section executive committees, and has been a member of the Lane County Bar Association board of directors, the Oregon State Bar Continuing Legal Education Committee, and the Oregon State Bar Futures Task Force. He has contributed articles on contract law and the execution and foreclosure of liens to Oregon State Bar legal publications. Mr. Churnside is a frequent speaker on collection law and debtor-creditor issues. Holli Houston, Professional Liability Fund (PLF), Tigard, OR. Ms. Houston serves as a claims attorney for the PLF, where she is responsible for investigating and evaluating claims made against lawyers. She also regularly assists lawyers in avoiding malpractice claims and coming up with creative solutions to complicated problems. Prior to joining the PLF, Ms. Houston was in private practice focusing on the defense of lawyers in malpractice litigation. She also taught Legal Research and Writing at the University of Oregon School of Law. Ms. Houston is past chair of the Oregon State Bar Legal Ethics Committee and Uniform Civil Jury Instructions Committee. Heather Kmetz, Sussman Shank LLP, Portland, OR. Ms. Kmetz is a tax lawyer and chair of the firm’s Business Group. She assists individuals and businesses in establishing tax-sensitive wealth preservation plans and transactions and serves as outside corporate counsel for a variety of closely held businesses, helping them to develop and transition their businesses. Ms. Kmetz is Secretary of the Oregon State Bar Taxation Section and a member of the American Bar Association Taxation Section, the Oregon State Bar Business Law Section and Estate Planning and Administration Section, and the Multnomah Bar Association. She has authored several articles and is an active lecturer. Ms. Kmetz is licensed to practice in Oregon and Washington, and she holds a certificate in federal taxation from Lewis and Clark Law School. Kenneth Landis, Attorneys’ Liability Assurance Society Inc. (ALAS), Chicago, IL. Mr. Landis is Vice President and Senior Loss Prevention Counsel for ALAS, a mutual insurance company providing lawyers’ professional liability insurance to over 200 large law firms located throughout the United States. Prior to joining ALAS, Mr. Landis was in private practice in Chicago as a commercial litigator, handling trial and appellate work in state and federal courts, as well as arbitration and mediation proceedings. Mr. Landis’s duties include extensive writing and speaking on topics related to professional responsibility and lawyer liability. Matthew Larson, Hathaway Larson LLP, Portland, OR. Mr. Larson focuses on mergers and acquisitions, corporate finance, and general corporate matters for companies and individuals throughout the Pacific Northwest. His clients include private equity buyers and other active business acquirers in financial and strategic transactions. Mr. Larson also represents private target companies in mergers and acquisitions. His corporate finance experience includes early-stage debt and equity financing, private placements, and registered offerings. In addition, he provides general outside counsel services to many of his clients and their portfolio companies. He is chair of the Oregon State Bar Securities Regulation Section. Mr. Larson is a frequent speaker on mergers and acquisitions and Oregon corporate law. Business Law—The Life of a Deal vii FACULTY (Continued) Mark LeRoux, Tonkon Torp LLP, Portland, OR. Mr. LeRoux’s practice emphasizes federal, state, and local taxation and the relationship and impact those areas of taxation have on both business transactions and personal investments. He also engages in a general business practice, with a particular emphasis on partnerships and limited liability companies. Additionally, he represents clients in tax
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