THURSDAY, FEBRUARY 9, 2023
12:55 Welcome and Introductions
1:00 The "Stuff" Before the Purchase Agreement
Anderson T. Ellis, Van Winkle Law Firm, Hendersonville
Matthew B. "Matt" Homan, Womble Bond Dickinson (US) LLP, Charlotte
Everyone knows how important a binding purchase agreement is to finalizing a transaction. But you can't ignore how important pre-agreement maneuvering is to advancing your deal. Hear about what to consider before the agreement — from owner issues to legal diligence matters to letters of intent — and how to use the time before anything is binding to help set the stage for future success.
2:10 M&A Due Diligence Overview and Best Practices
Matthew L.C. Cox, McGuireWoods LLP, Charlotte
J. Porter Durham III, McGuireWoods LLP, Charlotte
Sarah F. Hutchins, Parker Poe Adams & Bernstein LLP, Charlotte
Receive an overview of the due diligence process in M&A transactions. This includes a discussion of general themes, timing of due diligence review relative to timing of the transaction signing and closing, common points of emphasis, and the implications of deal structure. Then discuss topical considerations, including the implications of rep and warranty insurance on due diligence, COVID-19 and CARES Act considerations, and technology and data privacy concerns.
3:20 Avoiding Pitfalls and Maximizing Value Through Strategic Tax Planning in M&A Transactions
Chris N. Bobby, Manning Fulton & Skinner PA, Raleigh
Thomas R. Crawford Jr., Thomas Judy & Tucker PA, Raleigh
Tax considerations find a way of commandeering M&A transactions, often in unanticipated ways and possibly years before a potential acquisition. Transactional attorneys can serve an important role in anticipating potentially derailing or value-maximizing tax issues. Learn about common pre-transaction tax structuring issues that can emerge years later in M&A due diligence, as well as important tax considerations that drive the structure of the deal before and during the purchase agreement negotiation process.
4:30 Employment Considerations in M&A Transactions
Natalie K. Sanders, Brooks Pierce McLendon Humphrey & Leonard LLP, Greensboro
Whether you represent the seller or the buyer, the continued employment relationship of the parties post-closing can be an important negotiation point in M&A transactions. Hear about some of the topics you should consider when negotiating an employment agreement, including non- competes and post-closing transition. Additionally, explore some of the employment considerations pre-closing, such as employment representations in the purchase agreement.
5:30 Adjourn for the day
FRIDAY, FEBRUARY 10, 2023
8:55 Welcome and Introductions
9:00 Case Law Update
Thomas J. "Tom" Molony, Elon University School of Law, Greensboro
Hear about recent business law judicial decisions from the North Carolina courts.
10:10 Commonly Negotiated Points in M&A Purchase Agreements
Heyward D. Armstrong, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
Joshua M. Diver, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
Explore important and often-negotiated topics in definitive M&A purchase agreements, including purchase price adjustment provisions, earnouts and termination provisions. While the topic of indemnification is covered in another session, this discussion flags key things to consider and pitfalls to avoid when drafting and negotiating important sections of a definitive purchase agreement, both in equity and asset transactions.
11:20 Indemnification in M&A Transactions: Coverage, Claims, and the Impact of Representations and Warranties Insurance
Christopher C. "Chris" Anson, Fortis Advisors LLC, San Diego, CA
Ann T. Dorsett, McGuireWoods LLP, Charlotte
Christie A. Hartinger, Wyrick Robbins Yates & Ponton LLP, Raleigh
Matthew Heinz, Lockton Companies, New York, NY
Indemnification provisions are some of the most heavily negotiated sections of an M&A purchase agreement and are significantly impacted by the use of transactional insurance. Hear from our panelists — practitioners from an insurance brokerage firm, a stockholder services firm and a deal lawyer in private practice — as they share their experience with indemnification terms, common indemnification claims and outcomes, and areas of particular focus for M&A lawyers.
12:20 Lunch Break
Business Law Section Annual Meeting
Ritchie W. Taylor, Manning Fulton & Skinner PA, Raleigh, 2021-2023 Section Chair, presiding
1:10 Debt and Equity Considerations in M&A Transactions
Peter E. Bosman, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
Jordan L. Fieldstein, Smith Anderson Blount Dorsett Mitchell & Jernigan LLP, Raleigh
Financing for an acquisition (how the purchase price is going to be paid and where the money will come from) carries considerations that sometimes are, but shouldn't be, overlooked in structuring and negotiating a transaction. Join us as we discuss some of the issues involved, whether using debt or equity, and the interplay between the purchase agreement and the agreements that govern the financing. Topics include basics of acquisition credit documents, financing conditions, subordination of earn-outs or seller notes, and best practices when involving lenders in the acquisition process, as well as equity considerations like the use of rollover stock and tax impacts of various structures on sellers.
2:20 Special M&A Issues for Nonprofits
Peter G. Mattocks, Schell Bray PLLC, Greensboro
Sarah M. Rozek, Fox Rothschild LLP, Greensboro
Nonprofit corporations have unique legal considerations when consolidating or changing form. This session highlights the common legal and practical issues that can arise under North Carolina law and federal tax law pertaining to tax exemption.
3:30 Pro Bono – It's Not Just for Litigators Anymore*
Casey Burke, Charlotte Center for Legal Advocacy, Charlotte
Todd Stillerman, Wells Fargo, Charlotte
Kimberly E. Zirkle, Moore & Van Allen PLLC, Charlotte
We all know about the ethical aspiration of 50 hours of pro bono service, but how do you get in those hours without going to court? This panel educates and explores some of the ways that transactional attorneys can make an impact in their communities without having to utter the phrase, "May it please the Court."
* Indicates portion providing Ethics/Professional Responsibility credit
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