Conference programme

The pandemic seems to be behind us, but other events continue to influence the world economy and with it the M&A markets. In the face of those developments deal terms, concerns and precautions evolve over time, as does the role of the deal lawyer. This session will look at some of the latest trends and developments in European private M&A, including:

• Value chain compliance risk analysis – who, what, where;
• Steering clear of sanctions;
• Deal-making in a downturn – evolving market practice and deal terms, from pandemic to recession; and
• Report from the foreign direct investment (FDI) frontier

ESG now figures daily in the headlines of the financial press, generally with a focus on publicly listed companies or investment funds. But private companies must also navigate this evolving and challenging landscape, including in the private equityPE context. This session will focus on the ESG issues and trends that confront all businesses, with a particular emphasis on private M&A, including diligence, conditions precedent, compliance and financing issues.

Secondaries are often criticised because it is just one fund selling to another. Europe’s largest asset manager went so far as to call such arrangements a ‘Ponzi scheme’ of one fund selling to another at inflated prices, without the check of a strategic buyer. On paper, circular deals are even more problematic, as the involved parties are related or sitting on both sides of the negotiation table. This panel will identify the types of transactions and the fact patterns that should trigger the enhanced scrutiny of a deal lawyer, and it will discuss possible ways to properly address these issues.

The world economy is facing a serious downturn with, among other things, compromised supply chains, a war in Europe, high inflation and the beginning of an energy crisis. With this, inevitably, the availability of (affordable) debt is no longer guaranteed and the terms and conditions for acquisition finance are impacted. The panel will take stock with respect to these aspects, discuss the latest trends and discuss how to best address them.

Some M&A practitioners refer to the due diligence of a bank as the ‘mother of all due diligences’. Admittedly, buying a bank is truly the archetype of acquiring a regulated business. There are peculiarities and unique challenges en route. The panel will elaborate on those challenges and shed some light on the commonalities and the nasty differences across jurisdictions.

Antitrust regulators have been adopting an increasingly strict view of competition issues, raising the stakes not only on deal certainty and calendars, but also on contractual provisions governing the process and outcomes. After briefly surveying the latest major evolutions in European competition law practice, this panel will drill down into the line-by-line challenges of negotiating antitrust conditions precedent, cooperation and calendar provisions (including drop dead and filing dates) as well as risk sharing arrangements (including varieties of hell or high-water clauses, agreed remedies and reverse break fees).

It has been estimated that up to one third of all private deals give rise to a formal dispute. This number would be even higher, if we also included the controversies that arise, and are settled, between signing and closing of a deal. M&A practitioners need to be prepared to navigate these challenges, pushing them out of their natural habitat of conference rooms and board rooms towards the court room. This session will focus on the tools that lawyers can apply in helping clients avoid, navigate and resolve pre-closing disputes.

Troubled times can spell increased obstacles to finding an agreement on price. This panel will first focus on some of the tools that can help to bridge the gap between a buyer and seller’s expectations and needs on price, while acknowledging that these solutions can raise their own challenges. For example, as one court noted, an ‘earn-out provision converts today’s disagreement over price into tomorrow’s litigation over the outcome’. The panel will thus also dig into how to draft and negotiate these necessary, but hazardous, tools.