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Private Equity Report Private Equity Report What’s Inside Volume 2 Number 2 Winter 2002 Can You Sandbag? The SEC’s “All Holders/Best Price Rule” Can Complicate Management Arrangements When a Buyer Knows that One of the Seller’s Representations or Warranties is Untrue in Tender Offers page 3 A buyer of a business generally assumes that if a representation or warranty made by the Guest Column: Surviving in seller in the purchase agreement survives the closing and is untrue, the buyer will have a right Private Equity’s Brave New World to recover damages (subject to any materiality standards, deductibles, caps, etc. provided for page 4 in the agreement). However, in some situations, a buyer may not be able to recover damages Trendwatch: Does it Matter for a breach of the seller’s representation if the buyer was aware of the breach before closing. Who Your Fund Advisers Are? The relevant case law is confusing, but the purchase agreement can provide buyers (and sellers) page 6 with greater certainty. Caveat Investor: Phase 1s May Four Troublesome Situations tation and that by closing the buyer waived Not Be Adequate for Analyzing Environmental Risk You are a frequent buyer of privately-held its right to be indemnified. Typical rights- page 8 businesses. Here are four situations in reserving provisions include a provision to Employee Leveraged which your knowledge of misrepresen- the effect that the seller’s representations Co-Investment Plans: Should tations by the seller may limit your ability and the seller’s obligation to indemnify You Have One? page 10 to recover damages, and recommenda- the buyer for breaches thereof will not be Troubling Times for Directors tions for preserving your rights. affected by any investigation by or on of Portfolio Companies page 12 The Last-Minute Dump. After you sign behalf of the buyer or by the buyer’s know- the purchase agreement and just before ledge that any such representation is or The New German Tender Offer Law closing, the seller’s lawyer hands you a might be untrue, and a provision to the page 14 effect that any waiver of the buyer’s rights letter listing ten ways in which the seller’s Are Your Fund Marketers Brokers? under the purchase agreement must be representations are not true. The purchase page 15 agreement does not contemplate updating express and in writing. of the seller’s representations. You ignore Sandbagging. Before the purchase agree- Alert: Removal of the U.K. the letter and, relying on your ability to ment is signed, your environmental 20 Partner Limit page 22 recover for the breaches of the representa- consultants inform you of a potential mate- tions pursuant to the indemnification rial liability uncovered in the course of their provisions of the purchase agreement, investigation of the business. Your lawyer close the transaction. Under the law of wants to bring this liability some jurisdictions (including New York), to the attention of the seller unless you have expressly reserved your and negotiate for either a rights (with the concurrence of the seller), purchase price reduction or you may not have a claim for the breaches a special indemnity. You are of the representations. reluctant to raise the point. A buyer should always include in the The seller is touchy, and you purchase agreement provisions reserving do not want to rock the the buyer’s rights. Otherwise the seller boat. You also do not want can argue that because the buyer closed, to scare your lenders. Your notwithstanding its knowledge that a lawyer confirms that the representation was untrue, the buyer liability would constitute a could not have relied on such represen- continued on page 18 “Would everyone check to see they have an attorney? ©All Rights Reserved. Collection from cartoonbank.com. Yorker The New 2002 I seem to have ended up with two.” letter from the editor Happy New Year from The Debevoise & Plimpton may be exactly the right time for financial institutions Private Equity Report. 2002 should prove a challenging with private equity operations to develop employee year for private equity firms seeking to strike the right leveraged co-investment plans. The advice offered by balance between fundraising, investing and operating Richard Hahn and Harold Neu to private equity profes- priorities. We have great faith that the private equity sionals serving on the boards of their firm’s troubled industry will meet those challenges. portfolio companies is particularly timely in the current As busted deals become more common, Robert economic environment. Quaintance, one of our Corporate Partners, explains As the German acquisitions that have been widely what buyers can do when they discover prior to closing predicted are beginning, David Hickok and Thomas that one of the seller’s representations is untrue and Schürrle, Partners in our new Frankfurt office, remind cautions against the dangers of sandbagging. Our Guest U.S. investors more accustomed to U.S.-style takeover Columnist for this issue, Eric W. Doppstadt, Director protections of the distinct features of the new German of Private Equity at The Ford Foundation, outlines Takeover Law. Ann Baker of our Paris office also several guiding principles that have characterized the explains the Fonds Commun de Placement a´ Risque most successful U.S. private equity firms over the last (FCPR), the most common private equity investment 15 years and should be considered by any firm hoping vehicle in France. to create value in the current environment of excess As technological advances and other developments capital, sluggish stock markets, lower returns and in the securities markets have increased the number reduced leverage. and types of persons involved in marketing securities, David Mason and David Lebolt, of our Compensation the SEC has made it more difficult to avoid being a and Benefits Group, highlight the risks sponsors face in broker. Marcia MacHarg, Kenneth Berman and Rachel negotiating compensation terms with target manage- Graham answer some FAQs about how efforts to place ment in advance of a tender offer and offer guidance on interests in private equity funds can implicate U.S. how to structure such arrangements to avoid running broker-dealer regulation and offer guidance on how afoul of the All Holders/Best Price Rule. In this issue’s private equity firms can avoid becoming subject to Trendwatch, Woody Campbell focuses on advisers, registration and reporting as a broker/dealer. analyzing the extent to which the choice of law firms As usual, we welcome any comments you may have and placement agents can affect deal terms. In addi- on how we can focus the publication on subjects of tion, Stuart Hammer warns potential buyers of practical interest to private equity firms and their businesses why Phase1 Environmental Assessments investors. may not be adequate to analyze environmental risk. Franci J. Blassberg Beth Pagel Serebransky and Kenneth Berman explain Editor-in-Chief that, notwithstanding the current environment, now Private Equity Partner/ Counsel Practice Group Members The Debevoise & Plimpton Franci J. Blassberg The articles appearing in this Private Equity Funds Colin Bogie – London Private Equity Report is a Editor-in-Chief publication provide summary Ann G. Baker – Paris Richard D. Bohm publication of information only and are not Kenneth J. Berman – Washington D.C. Geoffrey P. Burgess – London Ann Heilman Murphy Debevoise & Plimpton intended as legal advice. Woodrow W. Campbell, Jr. Margaret A. Davenport Managing Editor 919 Third Avenue Readers should seek specific Sherri G. Caplan Michael J. Gillespie New York, New York 10022 Please address inquiries regarding legal advice before taking any Michael P. Harrell Gregory V. Gooding (212) 909-6000 topics covered in this publication action with respect to the Marcia L. MacHarg – Frankfurt Stephen R. Hertz to the authors or the members www.debevoise.com matters discussed herein. Andrew M. Ostrognai – Hong Kong David F. Hickok – Frankfurt of the Practice Group. David J. Schwartz James A. Kiernan, III – London The Private Equity Washington, D.C. Rebecca F. Silberstein Antoine Kirry – Paris All other inquiries may be Practice Group London Marc A. Kushner directed to Deborah Brightman Mergers & Acquisitions/ Paris All lawyers based in New Robert F. Quaintance Farone at (212) 909-6859. Venture Capital Frankfurt York except where noted. Thomas Schürrle – Frankfurt Moscow All contents © 2002 Debevoise Hans Bertram-Nothnagel – Frankfurt Andrew L. Sommer – London Hong Kong & Plimpton. All rights reserved. E. Raman Bet Mansour James C. Swank – Paris Paul S. Bird John M. Vasily Franci J. Blassberg The Debevoise & Plimpton Private Equity Report l Winter 2002 l page 2 The SEC’s “All Holders/Best Price Rule” Can Complicate Management Arrangements in Tender Offers Nearly every sponsor’s negotiated of the equity (or deferred equity right) The risk here – in so far as it relates acquisitions will involve reaching that management is to receive in the to a sponsor’s arrangements with agreement with the future portfolio roll-over will be agreed to as well. management – is that some item(s) in company’s management team. If the None of these agreements are gener- the sponsor’s agreements with the acquisition is structured as a tender ally improper or inappropriate. They are management team are re-characterized offer, however, great care must be disclosed to the target board and to the as disguised payment for shares held by taken at all stages of the process to try public, and are necessary for both the management, and that “extra” payment to minimize the risk that an aggressive sponsor and the target company. If the must then be paid to the public share- plaintiff lawyer could claim that the discussions with management cannot holders. Perhaps more technically, the agreements violate the so-called “All start until after the sponsor has already risk to keep in mind is that this issue Holders/Best Price Rule” (Rule 14d-10 acquired the company, the management might get to a jury, although this risk under the Williams Act provisions of team may well try to extract some can sometimes be reduced somewhat the Securities Exchange Act of 1934).
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