M&A Engagement Letters: Strategies for Buyers, Sellers ...

[Pages:49]Presenting a live 90-minute webinar with interactive Q&A

M&A Engagement Letters: Strategies for Buyers, Sellers, Investment Banks and Their Counsel

Negotiating Scope of Engagement, Fees, Confidentiality, Termination, Indemnification and More

THURSDAY, MAY 7, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Today's faculty features: Kevin Miller, Partner, Alston & Bird, New York Stephen M. Kotran, Partner, Sullivan & Cromwell, New York James Ben, Managing Director, Rothschild, New York

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Investment Bank Engagement Letters

Kevin Miller Alston + Bird LLP 90 Park Avenue New York, New York 10016 Tel: (212) 210-9520 Fax: (212) 922-3840 kevin.miller@

Stephen M. Kotran Sullivan & Cromwell

125 Broad Street New York, New York 10004

Tel: (212) 558-4963 Fax: (212) 558-3588 kotrans@

James Ben Rothschild 1251 Avenue of the Americas 51st Floor New York, New York 10020 Tel: (212) 403-3500 Fax: (212) 403-3501 james.ben@

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The Engagement Letter

Timing

Investment banks generally require that an engagement letter be signed prior to commencing substantive work on the engagement to ensure that there is a clear understanding of the terms of the proposed engagement, and that the Investment Bank has the benefit of an indemnity/release covering any advice and services rendered.

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The Engagement Letter

Scope of engagement

The Investment Bank will act as the Company's (or specified committee of the Company's board) financial advisor (which may include rendering a fairness opinion).

Some engagements are fairness opinion only.

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The Engagement Letter

Scope of Engagement

Sample Provisions:

Scope of Engagement. The Company hereby engages the Investment Bank to act as the Company's exclusive financial advisor in connection with the proposed acquisition (the "Transaction") of [[insert Target's full legal name] (the "Target")]. [or, if a business division or assets of the Target are to be acquired, insert description of Target's business (the "Business")].

The term "Transaction" shall also include any transaction or series of related transactions whereby, directly or indirectly, control of, or a significant interest in, [the Target][the Business] or any of [the Target's businesses or assets][the Business] is acquired by or otherwise transferred to the Company or any of its affiliates, including, without limitation, a sale, acquisition or exchange of securities or assets, a lease or license of assets (with or without a purchase option) pursuant to a stock or asset purchase agreement or a merger, consolidation or reorganization, recapitalization, spin-off, split-off, tender offer, leveraged buyout or other extraordinary corporate transaction or business combination involving [the Target][the Business];

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