Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Wilson Chu, Partner, McDermott Will & Emery, Dallas

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Negotiating and Navigating the Fraud Exception in Private Company Acquisitions Key Considerations For Drafting a Fraud Exception to an M&A Contractual Indemnification Provision WEDNESDAY, MARCH 22, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Wilson Chu, Partner, McDermott Will & Emery, Dallas P. Gregory Hidalgo, Partner, McDermott Will & Emery, Dallas Jessica C. Pearlman, Partner, K&L Gates, Seattle Srinivas M. Raju, Director, Richards Layton & Finger, Wilmington, Del. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 All Bets off: Negotiating and Navigating the Fraud Exception in Private Company M&A Wednesday, March 22, 2017 Jessica Pearlman K&L Gates, Seattle Wilson Chu McDermott Will & Emery, Dallas Gregory Hidalgo McDermott Will & Emery, Dallas Srinivas Raju Richards, Layton & Finger, Wilmington, DE

6 Exclusive Remedy The rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. (ABA Model Stock Purchase Agreement, Second Edition) 6

7 Punitive Damages for Fraud and Fraudulent Inducement: Showing "Malice" Under Delaware law, punitive damages are available when: "Unlike contract damages, which are intended solely to compensate the non-breaching party for its expectation loss regardless of the willfulness of the breach, punitive damages are intended to punish tortfeasors whose wrongful conduct was committed with willfulness, wantonness, or malice. Punitive damages are generally permitted for conversion where the conversion "involves elements of... ill will, malice, recklessness, wantonness, oppression, insult, willful or conscious disregard of the plaintiffs rights, or other aggravating circumstances." Data Mgm't Internationale, Inc., v. Saraga, No. C.A. No. 05C , (Del. Chanc. 2007). In Delaware, malice requires: "malice requires a showing of "ill-will, hatred, or intent to cause injury." Malice also may be found after a party has demonstrated a reckless disregard for another's trade secrets with the intent to cause injury. The key requirement in finding malice in this context, therefore, is a showing that one party acted with the intent to cause injury to the other." Great American Opportunities, Inc.., v. Cherrydale Fundraising, LLC, Civil Action No VCP, (Del. Chanc. 2010). In Texas With respect to punitive damages for fraud or fraudulent inducement, Texas requires a showing of "malice," which is statutorily defined as: "a specific intent by the defendant to cause substantial injury or harm to the claimant" Tex. Civ. Prac. & Rem. Code Section (7) 7

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9 Exclusive Remedy The Fraud Exception Except for fraud, the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. 9

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11 Non-Reliance Buyer has not relied on Sellers with respect to any matter in connection with Buyer s evaluation of the Company other than the representations and warranties of Sellers specifically set forth in Article 3 [Seller s representations and warranties], and Buyer acknowledges that Sellers are not making any representations or warranties, express or implied, of any nature whatsoever with respect to the Company other than specifically set forth in Article 3. (ABA Model Stock Purchase Agreement, Second Edition) 11

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13 No Other Representations : Enough? No Other Representations and Warranties. Except for the representations and warranties contained in this Article 3 (including the related portions of the Disclosure Schedules), none of Seller, the Company or any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Seller or the Company, including any representation or warranty as to the accuracy or completeness of any information regarding the Company furnished or made available to Buyer and its Representatives (including the Confidential Information Memorandum prepared by [financial advisor] dated and any information, documents or material made available to Buyer in the Data Room, management presentations or in any other form in expectation of the transactions contemplated hereby) or as to the future revenue, profitability or success of the Company, or any representation or warranty arising from statute or otherwise in law. 13

14 Elements of fraud in Texas 1. The defendant made a representation to the plaintiff; 2. The representation was material; 3. That representation was false; 4. When the defendant made the representation, the defendant either knew the representation was false or made the representation recklessly, as a positive assertion without knowledge of its truth; 5. The defendant made the representation with the intent that the plaintiff act on it; 6. The plaintiff relied on the representation; and Elements of fraud in Delaware 1. A false representation, usually one of fact, made by the defendant; 2. The defendant's knowledge or belief that the representation was false, or was made with reckless indifference to the truth; 3. An intent to induce the plaintiff to act or to refrain from acting; 4. The plaintiff's action or inaction taken in justifiable reliance upon the representation; and 5. Damage to the plaintiff as a result of such reliance Gaffin v. Teledyne, Inc., 611 A.2d 467, 472 (Del. 1992) 7. The representation caused the plaintiff injury. In Re International Profit Assocs., 274 S.W.3d 672, 678 (Tex. 2009). 14

15 The additional element for fraudulent inducement in Texas Under Texas law, fraudulent inducement requires the same elements plus one additional element of proof: that the plaintiff entered into a binding agreement as the result of the fraud. Haase v. Glazner, 62 S.W.3d 795, (Tex. 2001). Fraudulent inducement has the same elements of fraud under Delaware common law. Smith v. Mattial, C.A. No VCN, at * n. 37 (Del. Chanc. 2010). 15

16 Exclusive Remedy The Fraud Exception Except for intentional fraud, the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. 16

17 Exclusive Remedy The Fraud Exception Except for intentional fraud committed with the Knowledge of Sellers, the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. 17

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19 Exclusive Remedy The Fraud Exception Except for fraud or intentional misrepresentation, the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. ABA Model Stock Purchase Agreement, Second Edition) 19

20 Exclusive Remedy The Fraud Exception Except for fraud or willful misconduct, the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. 20

21 Exclusive Remedy The Fraud Exception Except for intentional fraud committed with the Knowledge of Sellers (in which case, solely against the Person or Persons committing or alleged to have committed such intentional fraud), the rights set forth in [the Agreement s Indemnification provisions] will be the exclusive remedy for breach or inaccuracy of any of the representations and warranties set forth in Articles 3 and 4 and will be in lieu of all remedies available in law or equity. 21

22 Wilson Chu (Mergers & Acquisitions) Wilson Chu is a partner in the Dallas office of McDermott Will & Emery. He focuses his practice on mergers and acquisitions (M&A), joint ventures and other strategic transactions, as well as related corporate governance, for clients ranging from Fortune 500 serial acquirers to private equity funds and high-growth, high-profile technology companies in the United States and abroad. While he has experience in a wide range of industries, his practice is heavily weighted in the technology and health care sectors, with an emphasis on the converging fields of healthtech and fintech. His representative clients include the following: AmerisourceBergen Corporation (NYSE: ABC) Renren, Inc. (NYSE: RENN) Sabre Corporation (NASDAQ: SABR) Xerox Corporation (NYSE: XRX) 7-Eleven, Inc. As the creator of the American Bar Association's (ABA) influential M&A Deal Points Studies, Wilson is widely recognized for his thought leadership that continues to shape M&A practice globally. He was a founding co-chair of the ABA'S M&A Market Trends Subcommittee, which publishes the Deal Points Studies. Wilson is founding co-chair of the University of Texas Mergers & Acquisitions Institute, the country's leading private company M&A conference, the founding chair of the International Finance Law Review/Inter-Pacific Bar Association's Asia M&A Forum in Hong Kong, Asia's leading M&A law conference, and founding chair of the Mergers & Acquisitions Section of the Dallas Bar Association. 22

23 Greg Hidalgo (Mergers & Acquisitions) Greg Hidalgo is a partner in the Dallas office of McDermott Will & Emery. His practice reflects his passion for collaborating with clients to achieve their business objectives and to develop meaningful and enduring client relationships. Greg has extensive experience counseling and providing innovative and client-centered solutions for publicly held and privately owned clients in the areas of mergers and acquisitions (M&A), joint ventures, corporate governance and other corporate-related matters. He also represents clients in corporate finance and capital market transactions. Greg's client relationships span a variety of industries, including technology, commercial real estate services, consumer products, energy, health care, manufacturing, private equity, retail and telecommunications. Greg began his career as a certified public accountant with Ernst & Young LLP, where he worked from 1987 to He regularly utilizes his financial experience when representing clients. Greg speaks frequently on various hot topics at conferences and on webinars, including issues such as negotiating the fraud exception, the black art of winning M&A auctions, transitioning closely held businesses, and the JOBS Act. 23

24 Jessica Pearlman (Mergers & Acquisitions) Jessica Pearlman is a partner in the corporate group of K&L Gates LLP and resides in the Seattle office. Ms. Pearlman represents emerging and established companies in various corporate, securities, and finance matters, with an emphasis on mergers and acquisitions for both public and private clients, domestic and international. Ms. Pearlman has particular depth of experience in various technology sectors, including healthcare applications, software, social media, data security, data storage, mobile applications, and search and search engine optimization, as well as in digital and traditional media, biotechnology, and transportation. Ms. Pearlman is a frequent presenter on mergers and acquisitions topics and was selected for inclusion in The International Who's Who of Merger and Acquisition Lawyers, Who's Who Legal (2015) and as a Washington Super Lawyer and one of the Top Women Attorneys in Washington (2013-present), as well as a Washington Rising Star ( ). Ms. Pearlman was also a winner of the 2013 ILO Client Choice Awards. Ms. Pearlman is an adjunct professor at the University of Washington School of Law, is active in leadership roles with the Mergers & Acquisitions Committee of the American Bar Association s Section of Business Law and is a member of the Thomson Reuters Business Law Solutions Advisory Board. 24

25 Srinivas Raju (Mergers & Acquisitions) Srinivas M. Raju is a member of the Wilmington, Delaware law firm of Richards, Layton & Finger, P.A. His practice focuses on corporate advisory, corporate governance, transactional, and complex litigation matters relating to Delaware corporations, limited partnerships and limited liability companies. Srini has litigated numerous corporate control, corporate governance, and contractual disputes in the Delaware Court of Chancery and the Delaware Supreme Court. He has also advised corporate boards, special committees, and general partners with respect to governance and transactional issues. Srini is frequent speaker on fiduciary duty and governance issues, particularly with respect to Delaware limited partnerships and limited liability companies. He has also published numerous articles on these topics, including articles published in The Business Lawyer, Securities & Commodities Regulation, Delaware Journal of Corporate Law, and Insights, and is co-author of a book titled Special Committees: Law and Practice (Oxford 2011). Srini has been recognized in Chambers USA; Benchmark Litigation; The Best Lawyers in America; Lawdragon; PLC Which Lawyer; Super Lawyers; and The Legal

26 Disclaimers This presentation (including the remarks of the speakers) is intended merely to provide a general introductory overview of certain trends and developments affecting M&A transactions. It is not intended to provide a complete analysis of the matters covered and there are potentially important exceptions and qualifications that are not reflected herein or wherever Google-able. The sample provisions included in these materials are intended only to serve as examples of hypothetical (i.e., make-believe) provisions. M&A is an art not a science, so do your homework. For example, all provisions must be carefully tailored to reflect the specific terms of the transactions to which they relate. This presentation: does not necessarily reflect the views of the speakers or their firms, and the speakers reserve the right to flip-flop as the context requires. is not (i) provided in the course of and does not create or constitute an attorney-client relationship, (ii) intended as a solicitation, (iii) intended to convey or constitute legal advice, and (iv) a substitute for obtaining legal advice from a qualified, high-dollar attorney. Past performance does not guarantee future results. We do not use cookies or MSG. Do not text when driving, walking or reading this presentation. If you have an interest in this presentation that lasts more than 4 hours, get medical help right away. 26