Negotiating and Navigating the Fraud Exception in Private Company Acquisitions

Key Considerations For Drafting a Fraud Exception to an M&A Contractual Indemnification Provision

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


Conducted on Wednesday, March 22, 2017

Recorded event now available

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Program Materials

This CLE webinar will examine the game-changing role the fraud exception could play in private target M&A agreements, with a focus on properly contouring limitations on indemnification and other remedies based on fraud claims.

Description

Could one party’s optimism be another party’s fraud? High profile busted deals remind us that, when fraud looms, all bets are off on those otherwise carefully crafted contractual provisions so typical in M&A deals.

For venture capitalists and other financial sellers in particular, thoughtful limitations on liability could make the difference between a “good deal” and a “not worth it deal.” For buyers, it could mean the difference between being a “visionary CEO”—or a “hapless CEO.”

Our panel of seasoned M&A attorneys, with a strong dose of reality from a Delaware litigator’s perspective, will illustrate the role of the fraud exception in private company acquisitions, highlighting negotiation and drafting strategies to help you deftly put the genie back into the 11th-hour bottle.

Listen as our panel discusses critical considerations when drafting a fraud exception to an indemnification provision, strategies that can be implemented for seller or buyer when negotiating the fraud exception, and ways to juggle competing interests of multiple selling stockholders (e.g., lead vs. coattail investors).

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Outline

  1. What is a fraud exception and who cares?
  2. Recent case law impacting fraud remedies in M&A
  3. Practical negotiation strategies

Benefits

The panel will review these and other key issues:

  • What strategies can be implemented for limiting (for seller) or preserving (for buyer) the fraud remedy’s “Sword of Damocles?”
  • What critical considerations should counsel contemplate when drafting a fraud exception to an indemnification provision?
  • How can counsel best juggle competing interests of multiple selling stockholders (e.g., lead vs. coattail investors)?

Faculty

Chu, Wilson
Wilson Chu

Partner
McDermott Will & Emery

Mr. Chu’s practice focuses on M&A, joint ventures, and other strategic transactions, as well as, related...  |  Read More

Hidalgo, P. Gregory
P. Gregory Hidalgo

Partner
McDermott Will & Emery

As a transactional and securities lawyer, Mr. Hidalgo counsels and provides innovative and client-centered...  |  Read More

Pearlman, Jessica
Jessica C. Pearlman

Partner
K&L Gates

Ms. Pearlman represents companies in various corporate, securities and finance matters, with an emphasis on...  |  Read More

Raju-Srinivas
Srinivas M. Raju

Director
Richards Layton & Finger

Mr. Raju focuses his practice on corporate advisory, corporate governance, transactional, and complex litigation...  |  Read More

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