By Geoff Yates
This review of a fancy and infrequently misunderstood topic takes the reader during the matters which are confronted in the course of the lifestyles cycle of a personal fairness funding, from the id of a chance, throughout the a number of levels of the transaction and the life of the funding, to the eventual go out by way of the investor. The research of key documentation and criminal matters covers corporation legislations, employment legislations, pensions, taxation, debt investment and festival legislations, bearing in mind fresh felony advancements akin to the corporations Act 2006, the new emergence of non-public fairness within the united kingdom and the demanding situations confronted by way of the end result of the monetary difficulty.
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Additional resources for A Practical Guide to Private Equity Transactions (Law Practitioner Series)
However, the limitations of a buyer relying on such legal protection alone should be obvious. For example: • A buyer would prefer to know about any such issues before transacting, and to negotiate with the seller to reflect the implications of those issues, rather than chasing the seller for financial compensation by way of an action for damages after the deal. • The ability of the buyer to pursue such an action under general law is limited. In theory, an action may be possible based on deceit, misrepresentation or possibly a breach of statutory duty,13 but this will generally be limited to more extreme cases of dishonesty, so in most circumstances the principle of caveat emptor prevails.
1 Overview of due diligence The buyer of a business will rely on his legal advisers to ensure (insofar as possible) that he is afforded sufficient protection in the acquisition agreement or other legal documents in the event that the Target acquired does not perform as was envisaged in the Business Plan, or if a material issue arises within the business post-acquisition which, had he been aware of such risk before completion, may have affected his decision to proceed at the originally offered price, or possibly at all.
Although the heads are generally non-binding for this reason, there are certain key clauses which the parties (or at least one of them) will insist should be legally binding. (a) Confidentiality The seller(s) and the Target have a keen interest in protecting the confidential information of the business. Although this is perhaps a more obvious issue when dealing with a trade buyer, a similarly cautious approach is nevertheless usually adopted when the buyer is a private-equity-backed company. Accordingly, it will be usual for the seller(s) to require any interested buyer to enter into a formal confidentiality letter at an early stage, sometimes as a prerequisite for access to the information memorandum or other details of the sale process.
A Practical Guide to Private Equity Transactions (Law Practitioner Series) by Geoff Yates