M&A Disputes and Completion Mechanisms

Heiko Daniel Ziehms

Dec 2018 · Kluwer Law International B.V.

About this ebook

In the course of a merger and acquisition (M&A) transaction, the principals and their advisors face a series of decisions, often against the backdrop of an unrealistic deadline, imperfect information and a shrewd other side. In making these decisions, they have to deal with complex technical matters at the intersection of disciplines, including accounting, law, taxation, corporate finance, operations, environmental and strategy. It is not always possible during the negotiations to take a step back and contemplate issues likely to arise before or after completion that may result in a dispute or to address or mitigate risks. It is therefore easy in these highly charged circumstances to create outcomes that end up in legal disputes.

A sound understanding of the completion mechanism including the basis and measurement of individual purchase price adjustments is important to negotiate good deals and avoid disputes. This book provides an in-depth discussion of the completion mechanism, including key arguments for or against individual deductions or adjustments. This can be helpful in negotiations. It also provides diagnostic tools and many recommendations that can help avoid disputes. If a dispute has occurred, it discusses how it can be resolved as well as the conceptual basis and practical approaches to the measurement of damages.

The book deals with numerous matters that need to be addressed during M&A negotiations and can lead to post-M&A dissonance, including the following:

- the equity bridge: from fi rm value to the purchase price for the equity; - closing conditions, the closing process and the completion accounts; - an in-depth discussion of individual purchase price adjustments from factoring to pensions and from leases to the working capital reference value; - material adverse change clauses; - aspects of locked box transactions, including the interest over the locked box period; - how to structure earn-outs to avoid disputes; - red flags for fraud; - damages valuation in M&A disputes; and - lessons learned on how to avoid or deal with disputes.

The author analyses a large number of actual post-M&A disputes as a lens to bring into focus precisely where things go wrong in practice. He then sets out practical solutions to the problems dealmakers face, how to negotiate individual price adjustments, and lessons learned from disputes.

This book will be useful to M&A practitioners, be they in-house counsel, private equity, sovereign wealth funds, international arbitration centres or other players, as well as the investment bankers, accountants and the professionals who advise them. It will also prove to be of great value to those who deal with post-M&A disputes – judges, arbitrators and litigators – and legal academics interested in the M&A field.

About the author

Heiko Daniel Ziehms is a managing director in the London office of Berkeley Research Group. He focuses on the quantification of damages and forensic accounting analyses in M&A, joint venture and other commercial disputes and provides transaction advisory services.Mr Ziehms was appointed as financial and accounting expert in a large number of disputes. He has worked on matters in ICC, DIS, LCIA, ICSID, and SIAC arbitration forums, ad hoc arbitrations and the courts, including some of the most complex corporate disputes in Europe with values up to several billion euros. He is experienced in giving oral expert testimony. He has advised on several hundred transactions, including 'landmark' deals.He was listed among the world's foremost expert witnesses in the tenth edition of Global Arbitration Review's GAR 100. He has also been recognised by Who's Who Legal for several years among the leading expert witnesses for arbitration worldwide, and among the leading consulting experts for the quantum of damages and forensic accounting.Mr Ziehms holds an MBA from the Haas School of Business at the University of California at Berkeley and a graduate degree in Business from the University of Bamberg, Germany. He is a Certified Fraud Examiner, qualified and previously worked as a Certified Public Accountant.