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Category Archives: M&A and Private Equity

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PRI’s Private Equity Terms Guidance Focuses on Environmental, Social, and Governance (ESG) Factors

By Paul Davies and Michael Green On 13 July 2017, Principles for Responsible Investment (PRI) launched guidance on incorporating environmental, social, and governance (ESG) provisions in private equity fund terms. The publication, Incorporating Responsible Investment Requirements into Private Equity Fund Terms (the Guidance), followed a year-long consultation period with PRI signatories, expert counsel, and industry … Continue Reading

Private Equity and Privilege: Why Recent Legal Developments Matter to Buyout Firms

By Stuart Alford QC, Daniel Smith and Kem Ihenacho Legal professional privilege allows clients to share information with lawyers, knowing it need not be revealed in court. Privilege extends to legal advice generally, and to documents prepared in contemplation of litigation. Privilege has important implications for private equity beyond litigation, and can affect how firms … Continue Reading

Three Fund Issues That Can Unexpectedly Impact Portfolio Company Investments

By Tom Alabaster and Nick Benson Increasingly complex fund structures and documentation mean that analysing how potential portfolio acquisitions interact with the fund at the top of any deal structure is more important now than ever. Investor Excuse Rights for Environmental, Social, and Corporate Governance (ESG) Compliance As investors focus on ESG compliance, requirements for … Continue Reading

Selling to China: Four Key Questions All Private Equity Deal Teams Should Ask on an Exit

By Frank Sun Chinese acquirers are playing an increasingly important role as buyers of private equity sponsored companies — nearly 200 portfolio companies were sold to Chinese entities in 2016. However, in our view, measures taken by the Chinese government to scrutinise transaction fundamentals more closely and slow capital outflows have impacted deals. The number … Continue Reading

Buyout Firms Must Take Action to Respond to Global Cyber Threats

By Gail Crawford Cybercrime has become a critical issue for buyout firms as hackers are increasingly targeting sensitive business data to profit from insider knowledge. According to a Private Funds Management survey of 91 PE houses, 54% of PE firms said they had been hit with a cyberattack, while 45% said cybersecurity was a high … Continue Reading

Changes to Corporate Criminality Offences in the UK Cause Corporate Dealmakers to Review Acquisitions

By Stuart Alford QC, Daniel Smith Proposed changes to corporate criminal offending should cause corporate dealmakers to review the scope of acquisition diligence, particularly in light of the UK Serious Fraud Office’s (SFO’s) increasing use of deferred prosecution agreements (DPAs), as highlighted by the recent Rolls Royce and Tesco cases. Expected Expansion of Corporate Liability … Continue Reading

Warranty and Indemnity Insurance: Practical Pointers

By Nick Cline, Dan Treloar, Katie Campbell Warranty and Indemnity (W&I) insurance, which seeks to bridge the gap between a buyer’s wish for deal protection and a seller’s desire for a clean exit, has become a common product in European M&A transactions. In our view, there is real value in having a thorough understanding of … Continue Reading

Chinese Outbound M&A: 4 Key Questions

By Richard Butterwick, Cathy Yeung, Yilong Du, Karima Salway Overseas direct investment by Chinese companies increased significantly in 2016 to US$212 billion, a 143% increase from 2015. While outbound M&A interest remains strong in China, recent measures taken by the Chinese government to scrutinise transaction fundamentals more closely and slow capital outflows may impact deals … Continue Reading

M&A Deal Terms in 2017: What Can Deal Teams Expect?

By Nick Cline, Robbie McLaren, Katie Campbell Britain’s decision to leave the European Union in June 2016, coupled with the election of Donald Trump as US president in November 2016, gave dealmakers plenty of pause for thought last year – but ultimately did little to derail strategic M&A. Encouraged by the post-Brexit decline in the … Continue Reading

Buy and Build Strategy Increases Antitrust Risk for Private Equity

By Sophia Stephanou, Luca Crocco and Hector Armengod Private equity firms have sought a greater number of buy and build opportunities in recent years, amid high valuations and competition for primary deals. In our view such deals carry higher antitrust risks and warrant careful consideration of antitrust issues by both private equity teams and portfolio … Continue Reading

Traditional UK Employment Law Means Gig Economy Could Be Hard Work for Private Equity

By Sarah Gadd Companies that operate in the “gig economy”, using a largely self-employed workforce, have enjoyed enormous growth in recent years but in the UK, these companies have come into conflict with long-established UK employment law. In our view, current laws are not fully equipped to deal with new staffing models in which staff … Continue Reading

Will New Spanish Dividend Rules Cause Pain for Private Equity in Spain?

By Ignacio Dominguez Recently effected reforms to Spanish dividend protections for minority shareholders should cause European dealmakers to review deal terms more closely in 2017. Outright acquisition of businesses is unusual in Spain, 83% of Spanish private equity transactions completed since January 2016 involve the acquisition of less than 100% of the target. In our … Continue Reading

Prosecuting Corporate Offending – A New Approach from the Serious Fraud Office

By Stuart Alford QC and Daniel Smith Deferred prosecution agreements (DPAs) became part of the prosecutors’ toolbox in 2014, allowing for settlement instead of bringing a case to trial. Recent statements from the Serious Fraud Office (SFO) indicate an increasing willingness to seek DPAs. The SFO has concluded two DPAs so far, and we expect … Continue Reading

Warranty and Indemnity Insurance – Is the Silver Bullet Beginning to Tarnish?

By Neil Campbell and Leif Schrader Warranty and indemnity (W&I) insurance products have been marketed as a “silver bullet,” which can bridge the gap between a buyer’s wish to receive proper deal protection and a seller’s aim of a clean exit. However, as the market continues to mature, insurers are becoming cautious and terms are … Continue Reading

Sustainable Investment and ESG Compliance ─ Emerging Litigation

By Sophie Lamb and Paul Davies There is an increasing desire amongst PE firms to publicise value creation through the use of bespoke metrics to measure improvements and value derived from (ESG) policies including improved reputational risk management; better and more transparent governance; better health, environmental and safety standards; heightened efficiency; less disruption as a … Continue Reading

French Civil Code Reform Sparks Quiet Revolution in Management

By Benedicte Bremond and Gaetan Gianasso Since the era of Napoleon Bonaparte, French contract law has largely been governed by the same Civil Code. This year has seen a quiet revolution in the French legal system, bringing about modernisations that will improve the investment environment for buyout firms, particularly as relates to management equity. In … Continue Reading

New UK Foreign Investment Controls May Restrict PE Deals

By John Colahan As part of UK Prime Minister Theresa May’s new industrial strategy, private equity deal teams should expect a more interventionist approach to the acquisition of strategically important UK businesses by foreign buyers. The UK government has signaled its intention of creating a “proper industrial strategy”, making it capable of stepping in when … Continue Reading

Know Your Code: Open Source Usage Can Close Software Commercialisation Prospects for Tech Targets

By Deborah Kirk Buyout firms spent more than $39.38bn acquiring technology businesses in H1 2016, accounting for 28% of all global deal value and making technology the preferred sector for investment during the period. With investment flooding into tech, private equity is facing competition and increasingly high deal valuations. Tech companies pose unique diligence issues … Continue Reading

Return of the MAC – Material Adverse Change Clauses Making a Comeback in Oil and Gas Deals

By Simon Tysoe For many years, US and UK M&A practices have differed in their use of material adverse change clauses (MACs) in sale and purchase documents. Common, even ubiquitous in the US, these clauses, which permit a buyer to refuse to close upon the occurrence of events detrimental to the target, remain a rarity … Continue Reading

New EU Data Protection Rules Move the M&A Goalposts

By Gail Crawford After over four years of debate, the General Data Protection Regulation (GDPR) recently came into force, taking effect after a two year transition period, i.e. from 25 May 2018. The GDPR introduces a rigorous and far-reaching privacy framework, which will impact many M&A transactions. The GDPR sets out defined obligations and substantial … Continue Reading

Jury out on Gender Pay Reporting Regime

By Kendall Burnett and Sarah Gadd There is mixed opinion on the UK’s forthcoming gender pay reporting regime. Whether the new reporting obligations will help eradicate the UK gender pay gap (reported by the Office of National Statistics to be 19.2% in 2015) or fuel an increase in equal pay discrimination claims in the private … Continue Reading

PE Set To Benefit From More Outward Looking Chinese Buyers

By Amy Beckingham In recent years, Chinese companies have become increasingly bold in the search for new deals, looking beyond the country’s borders for transformational takeovers. This year already, we have seen the largest ever outbound deal attempted by a Chinese company, with ChemChina’s $43billon bid for Swiss agribusiness Syngenta. As China becomes more relaxed … Continue Reading
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