Distressed M&A: Seizing New Opportunities, Minimizing Legal Risks

Buying and Selling Troubled Businesses In and Out of Bankruptcy

Distressed debt deals hit $84.4 billion in 2009, more than four times 2008 levels

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, September 2, 2009

Course Materials

This seminar will discuss new opportunities in distressed M&A and offer best practices for deal counsel who are involved in structuring deals both inside and outside of a bankruptcy proceeding.


The acquisition of distressed businesses inside and outside of bankruptcy reached record levels over the past year as strategic buyers took advantage of bargain price opportunities. However, the new investment opportunities present a myriad of legal and financial considerations.

Acquiring a distressed business typically involves a compressed transaction with competing interests among the stakeholders. When acquisitions occur through a Chapter 11 bankruptcy proceeding or section 363 sale, buyers and sellers face additional legal hurdles.

It is critical that counsel for the buyer and seller understand the opportunities and challenges in distressed M&A and act strategically to negotiate a deal that maximizes the value of the troubled business to their clients’ respective benefits.

Listen as our experienced panel—including M&A and bankruptcy counsel, an investment banker and a credit officer—discusses new opportunities in distressed M&A and offers strategies for deal counsel for structuring the deal both inside and outside of a bankruptcy proceeding.



  1. Overview—impact of economic forces on M&A activity
  2. Opportunities for buyers and sellers in distressed M&A
    1. Out of court distressed M&A
    2. Chapter 11 auctions
    3. Credit bidding
    4. Bank loan portfolios
  3. Best practices for structuring the distressed M&A deal—from the buyer’s and seller’s perspectives
    1. Cash deposits
    2. Representations and warranties
    3. Bid protections and procedures
    4. MAC clauses
    5. Closing conditions
    6. Indemnification


The panel will review these and other key questions:

  • What are the key factors driving the increase in distressed M&A deals?
  • What are some of the potential legal pitfalls in negotiating distressed M&A deals?
  • What unique issues arise when M&A deals occur as a part of a bankruptcy proceeding?
  • What are the best practices for counsel on both sides of the deal to tailor terms in distressed transactions?


Joseph Theodore Kinning
Joseph Theodore Kinning

Fulbright & Jaworski

For over 20 years, he has successfully counseled a variety of regional and national corporate clients through complex...  |  Read More

Stephen Spencer
Stephen Spencer

Houlihan Lokey

He advises clients on mergers and acquisitions, special situations financing, financial restructuring and other...  |  Read More

Berry D. Spears
Berry D. Spears

Fulbright & Jaworski

He has represented clients in restructuring matters in numerous industries and commercial sectors, including financial...  |  Read More

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