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[Cached Version]
Published on: 3/21/2006
Last Visited: 3/10/2007
I just love listening to Rick, Joel and Wilson do their thing.
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The Chair of the Committee on Negotiated Acquisitions, Rick Climan, is on this call.He is a partner and head of the M&A Group at Cooley Godward LLP.
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Joel is also the incoming Chair of the Committee and is scheduled to take over from Rick after the Honolulu meeting in August.
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RICK CLIMAN, Partner, Cooley Godward LLP: . . . [This] segment . . . is relevant both to acquisitions of public companies and to acquisitions of privately held companies.
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CLIMAN: . . . One of the representations in the acquisition agreement that buyers and sellers often fight about in the course of their negotiations is the sellers' "no undisclosed liabilities" representation.
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CLIMAN: But the buyer's lawyer needs to recognize that even if he or she wins this battle and succeeds in getting the sellers' lawyer to accept the broader version of this representation - the version that extends beyond GAAP liabilities to contingent liabilities - the representation still might not provide the buyer with as much protection as the buyer might expect.
That's because, in the M&A context, the term "contingent liability" may be interpreted somewhat narrowly.
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CLIMAN: . . . Our next segment relates to the post-closing indemnification provisions you would typically find in the definitive agreement for the acquisition of a privately held company.
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CLIMAN: Our next topic relates to "earn-outs."
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CLIMAN: . . . Our next and last segment addresses an important facet of directors' fiduciary duties in the M&A context.
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ROMANEK: I want to thank Rick, Joel and Wilson for doing this.