Venture Capital and Private Equity Opinions of Counsel

Scope, Assumptions and Qualifications, Due Diligence, Opining on Delaware Matters

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


Conducted on Wednesday, August 11, 2021

Recorded event now available

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Course Materials

This CLE course will discuss the preparation of opinion letters and the opinions typically provided by counsel in venture capital and private equity transactions. The panel will review the common elements of an opinion letter, including assumptions and qualifications, and outline common practices relating to the scope of the opinions and the diligence undertaken to issue the opinions.

Description

In venture capital financings and private equity investments, investors want to know that the company's formation, corporate governance, and capitalization are in order and that the company has duly authorized and executed, and has the legal authority to enter into, the proposed transaction. The opinion of counsel often confirms these matters.

A well-crafted opinion letter describes the scope and limitations of the opinions set out therein and sets out the factual (and sometimes legal) assumptions on which the opinions are based as well as qualifications to the opinions expressed. The content of an opinion letter depends in significant part on investigations performed by the opinion giver. Due diligence required to render an opinion often includes reviewing the company's corporate and capitalization records, material contracts, relevant statutes, and perhaps case law.

Whether the transaction requires an opinion letter and if so, the scope of the opinion, are subject to negotiation by the parties. The answer may depend on the history, size, and complexity of the business seeking investment and the nature and extent of the investment. As to many opinions involving Delaware law, non-Delaware lawyers often limit those opinions to a review of relevant statutory law and exclude case law.

Listen as our authoritative panel of finance attorneys discusses preparing and providing opinion letters in venture capital and private equity transactions.

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Outline

  1. Considerations regarding when opinion should be required and what matters to address
  2. Scope of the opinion: addressees and reliance
  3. Authority opinions
    1. Formation and valid existence
    2. Entity power
    3. Authorization, execution, and delivery
    4. No required consents, authorizations, or approvals; no litigation
  4. Qualifications and assumptions
  5. Enforceability opinions and exceptions
  6. Delaware opinions
  7. Sources for opinion practice and customary practice

Benefits

The panel will review these and other important issues:

  • When should an opinion be required in venture capital financing? A private equity investment?
  • What resolutions and certificates should counsel require to back up its opinion?
  • What are standard assumptions and qualifications, and to what extent are they negotiated?
  • Common practices relating to opinions on Delaware law by non-Delaware counsel.

Faculty

Bidwell Jr., J. Truman
J. Truman Bidwell, Jr.

Partner
Sullivan & Worcester

Mr. Bidwell is the co-chair of the Firm’s Opinions Committee. His practice is focused in the areas of...  |  Read More

Chin, Sylvia
Sylvia Fung Chin

Partner Of Counsel
White & Case

Ms. Chin focuses her practice on corporate and commercial financing, with an emphasis on asset-based financing...  |  Read More

Santucci, Ettore
Ettore A. Santucci

Partner
Goodwin Procter

Mr. Santucci chairs the Firm's Capital Markets Group and co-chairs the REITs and Real Estate M+A Group. He...  |  Read More

Zeberkiewicz, John
John Mark Zeberkiewicz

Director
Richards Layton & Finger

Mr.  Zeberkiewicz focuses his practice on complex transactional matters involving Delaware corporations, including...  |  Read More

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