M&A Post-Closing Purchase Price Adjustments: Drafting and Negotiating Strategies

Defining Working Capital, Baseline Amount and Accounting Principles; Overlap With Indemnification Clauses; Adjustment Process

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


Conducted on Tuesday, May 14, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide counsel in drafting and negotiating purchase price adjustment (PPA) provisions in M&A acquisition agreements.

Description

PPA provisions are a commonly used mechanism in M&A transactions to enable the buyer to ensure that it receives the target company upon closing with sufficient net working capital (NWC) to be able to support its operations so that the buyer doesn't need to make an infusion of cash into the target company soon after closing. PPA provisions can also be used to adjust purchase price based on the target company's net assets, inventory, cash balance, accounts receivable collections and other financial measures.

PPA provisions can also be a way for the buyer to claw back some of the purchase price paid for a target company with improperly calculated financial measures so that the purchase price that it pays corresponds to the target company's actual value. However, for sellers of companies in M&A transactions, PPA provisions can severely adversely impact their net sale proceeds and therefore need to be carefully crafted by their counsel to protect their rights.

Counsel drafting PPA provisions must focus on several essential issues. The issues include defining the elements of NWC or other financial measure for the PPA, setting the target amount, specifying the accounting principles for the PPA calculation, and attaching example calculations to the acquisition agreement. Legal advisers must also analyze the burden of proof, determine a mechanism for resolving PPA-related disputes, determine a mechanism for payment of amounts due on completion of the PPA, and grasp the overlap between PPA, general indemnification and tax indemnification provisions.

Listen as our authoritative panel of M&A attorneys discusses considerations and best practices for deal counsel when drafting and negotiating PPA provisions in the acquisition agreement.

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Outline

  1. Overview of purchase price adjustment provisions
  2. Drafting and negotiating strategies
    1. Defining net working capital
    2. Setting the baseline amount
    3. Accounting methods/principles
    4. Overlap with indemnification provisions
    5. Adjustment process
    6. Dispute resolution
    7. Payment of adjustment amount

Benefits

The panel will review these and other key concepts:

  • What deal-specific considerations should counsel be most sensitive to when drafting and negotiating PPA provisions?
  • What are the most commonly disputed issues with PPAs?
  • What can you do to avoid unintended results?

Faculty

Lamonica, Robert
Robert C. Lamonica

Counsel
Pryor Cashman

Robert Lamonica is a member of Pryor Cashman's Corporate and Banking + Finance Groups. Practicing primarily in...  |  Read More

Weinsier, Michael
Michael Weinsier

Partner
Pryor Cashman

Mr. Weinsier is a partner with Pryor Cashman LLP, where he is the co-leader of the firm’s Private Equity...  |  Read More

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