Leveraged Buyouts

  • ID: 578536
  • Book
  • Region: Global, United States
  • 1770 Pages
  • ALM Media, LLC
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“A comprehensive overview of the leveraged buyout (LBO) process& I strongly recommend this resource for M&A, securities, and corporate collections.” — Ramon Curva, Senior Information Specialist, Cravath, Swaine & Moore LLP, Legal Information AlertWhether you represent buyers, sellers or lenders, Leveraged Buyouts provides practical, in-depth answers to all of your questions as well as model documents for every contingency. This comprehensive guide explains each variety of leveraged transaction in detail—its rationale, the advantages and drawbacks of the available financing and tax structures, corporate governance and regulatory issues, and the many legal issues that arise along the way.

Coverage includes everything from the simplest transactions to trophy deals, including: buyout nomenclature; merger agreements; loan agreements; fairness opinions; registration rights; tax consequences; fraudulent conveyance laws; material adverse change; corporate governance; and state and federal regulations.Leveraged Buyouts also provides sophisticated examples of the documents needed for private equity investors to acquire a public Delaware corporation—from Equity Commitment Letters to a Senior Subordinated Note Indenture, and more.

Whether you are trying to structure mezzanine financing, minimize taxable events for your client, or negotiate a break-up fee, Leveraged Buyouts has solutions that will save you time and help you draft the best possible documents for your transaction.
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CHAPTER 1: Introduction to Leveraged Buyouts
1.01 Introduction
1.02 Buyout Nomenclature
1.03 Special Features of Buyouts
- Transitions
- Conglomerate/Deconglomerate
- Management Enhancement: “The Pilot Crashes Before I Do”
- Bypass the Unsecureds
- Going Private
- Value-Added Investing

CHAPTER 2: Sample LBO Deal Documentation
2.01 Sample LBO Deal Documentation
- Events Leading Up to the LBO
- Financing
2.02 Model Letter of Intent
2.03 Note on No Shop/No Solicit
2.04 Term Sheet as a Binding Agreement

CHAPTER 3: The Agreement and Plan of Merger
3.01 Model Agreement and Plan of Merger
3.02 Material Adverse Change
- Introduction
- What Is A MAC?
- Court Interpretations Of MAC Clauses
- Are Investment Transactions Different?
- The MAC Checklist
- Conclusion
3.03 Representations and Warranties
3.04 Break-Up Fees
- How Break-Up Fees Work
- Sample Break-Up Fee Provisions
3.05 Earn-Outs
- Earn-Outs Defined
- Benefits and Detriments of Earn-Outs
- Appropriate Transactions for Earn-Outs
- Proper Structuring and Implementing of Earn-Outs
- Tax and Accounting Treatment
- Conclusion

CHAPTER 4: Initial Investment Bank Agreements
4.01 Model Equity Commitment Letter
4.02 Model Loan Commitment Letter
4.03 Model Investment Bank Fairness Opinion
4.04 Note on Fairness Opinions
- How Bulletproof are They?
- Fairness Opinions in Emergencies
4.05 Agency/Financial Adviser Agreement
4.05A Model Participation Agreement
4.06 Mandatory Registration of Finders
4.07 Model Forward Underwriting Commitment Letter
4.08 Model [Senior Secured] Term Loan Agreement
4.08A Model Senior Secured Floating Rate Note
4.09 Model Asset-Based Revolving Credit Agreement
4.10 Secured Promissory Note

CHAPTER 5: Model Senior Indenture Agreement
5.01 Model Senior Indenture Agreement
5.02 Model Indenture Note

CHAPTER 6: Model Senior Subordinated Note Indenture
6.01 Model Senior Subordinated Note Indenture

CHAPTER 7: Model Note Purchase Agreement
7.01 Model Note Purchase Agreement
7.02 Convertible Note Purchase Agreement
7.03 Convertible Promissory Note and Security Agreement

CHAPTER 8: Lender Agreements
8.01 Model Term Loan Security and Intercreditor Agreement
8.02 Model Asset-Based Revolver Pledge And Security Agreement
8.02A Model Intercreditor Agreement
8.03 Model Lien Subordination and Intercreditor Agreement
- Second Priority Senior Secured Floating Rate Notes
8.04 Model Patent Security Agreement
- Trademark Security Agreement
8.05 Model Credit Agreement
8.06 Model Forbearance Agreement
8.07 Model Form of Guaranty

CHAPTER 9: Model Rights Agreements and Resolutions
9.01 Model Registration Rights Agreement
9.02 What are Registration Rights?
- Introduction
- Categories of Registration Rights
- The Principles Underlying Registration Rights
9.03 Rule 415 Shelf Registrations
9.04 Expenses
9.05 Indemnification
9.06 Model Stockholder Agreement
9.07 Model Guarantor Resolutions
9.08 Model Resolutions of the Board of Target, Inc.

CHAPTER 10: Tax Issues
10.01 Subchapter C: An Overview
10.02 Part I: Distributions by Corporations
- Effect on Recipients
- Effect on the Distributing Corporation
- Definitions and Miscellaneous
10.03 Part II: Corporate Liquidations
- Effects on Recipients
- Effects on Distributing Corporation
- Collapsible Corporations
- Special Rule
10.04 Part III: Corporate Organizations and Reorganizations
- Effects on Shareholders and Security Holders
- Effects on Corporations
- Special Rule; Definitions
10.05 Parts IV and V: Insolvency Reorganizations and Carryovers
10.06 Part VI: Stock or Indebtedness
10.07 Section 368(a) Reorganizations
- A-Type Reorganization
- B-Type Reorganization
- C-Type Reorganization
- Summary Comparison of A, B, and C-Type Reorganizations
- D, E, F, and G-Type Reorganizations
10.08 Certain Issues Particular to Triangular Mergers
10.09 Section 355 Reorganizations: Spin Offs, Split Offs, and Split Ups
- Statutory Requirements
- Active Conduct of a Trade or Business
- Device
- Nonstatutory Requirements
- Curtailed Utility in LBOs
10.10 Section 351 as a Surrogate for Section 368
- The “Receptacle” or “Mixing Bowl” Approach
- National Starch/Unilever
10.11 Recapitalizations
10.12 Taxable Stock Purchase
10.13 Taxable Asset Purchase
- Pre-1987 Law
- Repeal of General Utilities
10.14 Attempts to Step Up Basis and Avoid Double Taxation
- Use of S Corporations
- Newco, as a Partnership
10.15 Section 338(h)(10) Election
10.16 Retention of the Target as an Investment Company
10.17 Allocation of Purchase Price
- Affiliated Groups
10.18 Net Operating Losses
- Carryovers Under Section 381
- New Section 382 Limitations
- Alternative Minimum Tax Effect on NOLs
- Prechange Transactions
10.19 Debt Versus Equity
- Significance of the Distinction
- Some History
10.20 Original Issue Discount
- OID and Preferred Stock
10.21 Deduction of Reorganization Expenses
10.22 Debt Discharge, COD Income, and Debt for Equity
- New Rules Extending Period of OID Inclusion on Debt Re-Acquisition

CHAPTER 11: Lenders' Issues
11.01 Introduction
11.02 Fraudulent Conveyance
- Conveyance Act
- Transfer Act
- Section 548 of the Bankruptcy Code
- Intentional Fraudulent Conveyances
- Constructive Fraud
- Fraudulent Conveyance Concepts as Applied to LBOs
- Principal Elements of Fraudulent Conveyance Analysis
- Choice of Law: Statute of Limitations
- Remedies
- Subsequent Creditors
- Gleneagles Litigation
- Prophylactic Measures
- Clawback of Fraudulent Transfers from Investors— “Good Faith” Defense
11.03 Preferences
- Preferences Under State Law
11.04 Equitable Subordination
11.05 Usury
11.06 Substantive Consolidation
11.07 Guarantees
- Upstream, Downstream, and Cross-Stream Guarantees
- “Insider” Guarantees
11.08 Loan Agreements
- Affirmative and Negative Covenants
- Intercreditor Agreements
- Timely Payment
- Prepayment Provisions
- Negative Pledge
- Reports
11.09 Event Risks
11.10 Lender Liability
- Lender Liability under CERCLA
- Epilogue
11.11 Trust Indenture Act
11.12 Contractual Subordination
11.13 Events of Default
11.14 Bulk Sales
11.15 Margin Rules
11.16 Supervisory Definition of Highly Leveraged Transactions
11.17 Capitalized Leases
- UCC Issues
11.18 Prepackaged Bankruptcies
11.19 The “Single Satisfaction” Rule With Respect to Bankruptcy Claims
- Delta Air Lines: Two Claims Are Better Than One
- Ivanhoe and NEGT: Two Obligors Are Better Than One
- Multi-Debtor Bankruptcies: When Two Claims Are Against Two Debtors
- The Bottom Line
11.20 Third-Party Plan Releases Require Wide Support by All Creditor Classes

CHAPTER 12: Corporate Governance and Regulatory Issues
12.01 Restructuring and Reorganization Under State General Corporation Laws
- Statutory Formalities
- Extraordinary Dividends and Stock Redemptions
- Short Form Mergers
- Appraisal Rights
- Sale of “Substantially All the Assets”
12.02 Fiduciary Duties of Controlling Persons
- The Incorporated Partnership Theory
- The Balancing Approach: Business Purpose Versus Reasonable Expectation
- Duty to Negotiate with Controlling Party
12.03 Special Problems Posed by Dilutive Financings: Herein of “Burnouts” or “Cramdowns”
12.04 The “Squeeze Out Merger” Solution to Down Round Blockage
12.05 Equitable Constraints in Corporate Reorganizations
12.06 The Business Judgment Rule, the “Entire Fairness” Standard and “Enhanced Scrutiny”
12.07 The Revlon Rule; Duty to Auction
12.08 Alternatives to Auctions: The Market Check
12.09 Lockup Options, No-Shop Clauses and Break-Up or Topping Fees
- Lockups
- No-Shop Clauses
- Break-Up or Topping Fees
12.10 Fairness Opinions
- Fairness Opinions in Emergencies
12.11 Special Committee of Disinterested Directors
12.12 Hidden Conflicts
- Majority of the Minority
- Creditors as Members of the Oppressed Minority
- Directors' Duty of Care to the Minority
12.13 Federal and State Laws Designed to Regulate LBOs
- The Worker Adjustment and Retraining Notification Act of 1988
- Note on Hart-Scott-Rodino
- Control Share Statutes
- Exon-Florio Amendment
- Public Announcements of Merger Negotiations
- Public Announcements to Target Shareholders: Defensive Language
- Committee on Foreign Investment in the United States (CFIUS): Complying With the Voluntary Review Process
- Anti-Fraud Rules
12.14 Successor Liability

CHAPTER 13: Going Private
13.01 Introduction
13.02 Reasons for Going Private
- In General
- Going Private Methods
13.03 Schedule 13E-3
- Who Must File a Schedule 13E-3
- Schedule 13E-3 Disclosure and Fairness Opinions
- Rule 13e-3 Exemptions
- SEC Review
13.04 Fiduciary Duties of the Board
13.05 Going Dark
- Background on the Registration Process
- Mechanics of Going Dark
13.06 Sample Schedule 13E-3

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Joseph A. Bartlett
Joseph W. Bartlett is Of Counsel in the New York office of Sullivan & Worcester LLP. A former Undersecretary of Commerce, law clerk to Chief Justice Earl Warren and President of the Boston Bar Association, Mr. Bartlett graduated from Stanford Law School, where he was president of the Law Review. He is the author of articles and books on venture capital and is Courtesy Professor at Cornell University, The Johnson School of Business. He has been an Acting Professor of law at Stanford University and an Adjunct Professor at New York University School of Law. Mr. Bartlett is admitted to practice in New York, Massachusetts and Washington, D.C.
Peter L. Korn
Peter L. Korn, Jr. is a Partner in the New York office of Sonnenschein Nath & Rosenthal LLP and a member of its Corporate Practice Group. His practice emphasizes venture capital and private equity matters, mergers and acquisitions, and general corporate counseling for emerging growth companies. A graduate of Georgetown University and Duke University School of Law, he was previously a Principal at Fish & Richardson P.C.
David J. Mittelstadt
David J. Mittelstadt is Of Counsel to Fish & Richardson P.C. He is a member of the firm's Corporate and Securities group, with tax practice emphasizing corporate transactional planning in the areas of acquisitions, dispositions, and joint ventures in domestic and cross-border contexts. He also has additional experience in advising on structured finance transactions. He has previous experience as Counsel for Shearman & Sterling (2001-2003), Vice President-Tax Counsel for The Thomson Corporation; Thomson U.S. Holdings, Inc. (1993-2001), and as Tax Associate for Jones, Day, Reavis & Pogue (1991-1993), Fulbright & Jaworski (1988-1991), Hale and Dorr (1986-1988), and Bingham, Dana & Gould (1983-1986). A graduate of the University of Cambridge in 1981, Mr. Mittelstadt received his J.D. in 1983 cum laude from University of Chicago Law School, where he was a member of the Order of the Coif.
Cathy L. Reese
Cathy L. Reese is a Principal in the Delaware office of Fish & Richardson and heads the firms Corporate and Chancery Litigation practice. She is an established trial attorney with extensive experience in corporate and complex commercial litigation, as well as corporate counseling and corporate opinions. She is ranked as one of the leading litigators in Delaware by Chambers USA: Americas Leading Business Lawyers and has also been selected by Delawares legal community and a Blue Ribbon Committee of retired Delaware judges as one of the top 10 corporate litigators in Delaware. She often is called upon by law firms based in other states or countries to provide opinions on Delaware law issues. She received her B.S. from Columbia University in 1982 magna cum laude and her J.D. from George Washington University Law School in 1989 with honors.
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