Private Equity

This Note provides practical advice to purchasers of distressed assets in section 363 bankruptcy sales.

This Note compares the US federal income tax consequences for buyers, sellers and targets in taxable and tax-free acquisitions of C-corporations versus S-corporations.

This note describes an auction from the seller's perspective including, the advantages and disadvantages of an auction to the seller, the differences between an auction and a single buyer transaction and an overview of the auction process.

This Note discusses the US federal income tax classification rules that apply to US corporations, partnerships and LLCs. For the US federal income tax classification rules that apply to foreign businesses, see Practice Note, Check the Box Rules for Foreign Businesses.

This Note discusses the parameters of credit bidding in section 363 sales, the grounds on which credit bids can be attacked, intercreditor issues related to credit bidding and strategies for minimizing credit bidding risks.

This Note discusses the relevant criteria for determining whether a particular security is classified as debt or equity for US federal income tax purposes.

This Note provides strategies and drafting suggestions for reverse break-up fee and specific-performance provisions. The drafting advice in this Note will help ensure that the desired remedy for the buyer's failure to close an acquisition is accurately reflected in the acquisition agreement.

This Note discusses the use of earn-outs in private M&A transactions, including a review of their advantages and disadvantages, the various issues to consider when structuring earn-out provisions and the accounting and tax treatment of earn-out payments.

This Note explains exclusivity agreements in the context of an acquisition. It explains why exclusivity agreements are advantageous for a buyer, typical terms and conditions, common issues for the buyer and the seller, and certain fiduciary considerations.

This Note discusses the US federal income tax consequences of owning common stock or American Depositary Shares (ADSs) of a foreign corporate issuer.

This Note discusses growth equity investments, including the special characteristics that commonly differentiate growth equity investments from other minority investments, particularly seed and early stage venture capital investments.

This Practice Note examines key issues surrounding interim consortium agreements, which set out the terms on which one or more private equity firms agree to work together to bid for and acquire a target.

This Note discusses the key differences between asset purchase agreements used in section 363 sales and those used for sales outside of bankruptcy, including the different drafting and negotiating considerations involved. For more information on section 363 sales, see Practice Note, Buying Assets in a Section 363 Bankruptcy Sale: Overview and Timeline of a Section 363 Sale.

This Note summarizes some key limitations on interest deductibility imposed on a US corporate issuer.

This Note discusses the role of management in private equity buyouts and the use of equity-based incentives for management in sponsor-backed acquisitions and describes the common categories of management equity incentives.  For a discussion of the rights and restrictions that commonly apply to management equity incentives issued in a buyout, see Practice Note, Management Equity Incentives: Rights and Restrictions.

This Practice Note explains the key stages in a dual-track initial public offering/M&A auction sale process and the potential advantages and disadvantages of pursuing this approach. This resource does not yet address the impact of the Jumpstart Our Business Startups Act of 2012 (JOBS Act). For more information on the JOBS Act, see Practice Note, Road Map to the Jumpstart Our Business Startups (JOBS) Act of 2012.

This Note discusses the purpose, structure and legal constraints of no-shop provisions and their various exceptions, including fiduciary outs, window-shops and go-shops.

This Note discusses the common terms and features of a PIPE transaction (private investment in public equity).

This Note provides an overview of typical preferred stock features in a private equity or venture capital transaction and discusses the significant US federal income tax issues the sponsor must consider when structuring the preferred stock investment.

This Note provides an introduction to the three structures used in private acquisitions: asset acquisition, stock acquisition and merger.

This Note discusses the private equity investment activity of US banking organizations known as merchant banking.  It includes a background on merchant banking activity, which banking organizations are allowed to engage in it, and the requirements related to merchant banking investments. The effect of the Dodd-Frank Act on merchant banking is also discussed.

This Note explains the main exit strategies for private equity sponsors making control investments in portfolio companies through leveraged buyouts, and discusses the main advantages and disadvantages of each strategy. These exit strategies include initial public offerings, Rule 144 resales, secondary registered offerings, sales to a third party, leveraged and non-leveraged dividend recapitalizations, redemptions rights and tag-along rights.

This Note discusses the extent to which an issuer recognizes cancellation of indebtedness income (CODI) in connection with a restructuring of outstanding debt securities.

This Note discusses the negotiating issues of financial sponsors and lenders in commitment letters, term sheets and fee letters used in private equity acquisition financings, the terms typically negotiated in these letters and the continuing impact of the financial crisis.

This Note discusses the contractual protections stockholders in companies with few stockholders typically seek to protect their investment, ensure they are involved in the management of the company and realize a return on their investment.

This Note addresses the use of distribution waterfall provisions in partnership and limited liability company agreements for both investment vehicles and operating businesses. Waterfall provisions specify the priority of distribution of cash and other assets to the equity holders of partnerships and limited liability companies.

This Note discusses the US federal income tax rules that apply to US C-corporations and their US stockholders including the tax issues and rules at formation, during operations, on an asset distribution or sale, on a stock dividend, sale or redemption, and on liquidation.

This Note discusses the US federal income tax rules that apply to publicly traded partnerships.

A Note describing the key benefits issues to consider when the employment relationship with a senior executive is terminated, including a step-by-step guide on actions the business organization should take. It explains how to review existing entitlements, what elements to consider and how to negotiate and draft the separation agreement.

This Note discusses the US federal income tax consequences of owning common stock of a US corporate issuer.

This Practice Note discusses some key issues to consider when structuring and negotiating an option to acquire a pharmaceutical company, such as purchase price, duration of the option, events triggering the option, the relevant product's development plan and antitrust and accounting implications.

A discussion of private equity participation in the market for takeovers of public companies, including links to recent deals summarized in PLC What's Market. This Note will be updated quarterly.

A Certificate of Designation for a Delaware corporation issuing a series of convertible, double-dip participating preferred stock in connection with a private equity transaction, such as a growth equity investment into a private company. This Standard Document assumes a cumulative (and compounding), participating dividend and a senior participating liquidation preference (without a cap) for preferred stock with conversion, voting and redemption rights. This document is drafted in favor of the investor, but aims to be reasonable and contains provisions commonly included. It has integrated notes with important explanations and drafting and negotiating tips.

A standard form of confidentiality agreement to be used in connection with an acquisition. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

An exclusivity agreement to be used in connection with an M&A transaction. This Standard Document has integrated drafting notes with important explanations and drafting and negotiating tips.

A letter of intent for the purchase and sale of a division or a line of business of a private US corporation, drafted in favor of the buyer. This Standard Document assumes a single corporate buyer and a single corporate seller. This Standard Document may also be referred to as a term sheet or memoranda of understanding. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A limited guaranty to be used in connection with a private equity buyout. This is a form of the guaranty (or "guarantee") provided by the private equity sponsor to a seller or target company and is drafted in favor of the sponsor. It guarantees the payment obligations of the buyer under an acquisition agreement, up to a negotiated limit. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A form of memorandum for in-house counsel to instruct members of the board of directors or officers of a target company on reviewing representations and warranties in a purchase agreement for an M&A transaction. The memorandum generally explains the purpose of representations and warranties, how representations are commonly qualified, how the disclosure schedules work together with the purchase agreement and the impact of representations and warranties on a transaction.

A long-form stockholders agreement (also known as a shareholders agreement) to be used in connection with a leveraged buyout by a private equity sponsor or similar investment transaction with multiple stockholders where one investor is acquiring majority control over a company. This Standard Document assumes an agreement among a controlling private equity sponsor and members of company management. It can also be adapted, and includes alternative language and drafting guidance, for a non-control minority investment involving a group of investors. This Standard Document includes integrated notes with important explanations and drafting and negotiating tips.

A form of fixed percentage warrant to be used in connection with the financing of a private company, including in a private equity or venture capital transaction. This agreement sets out the terms and conditions by which the holder of a warrant receives the right to purchase, for a nominal exercise price and for a set exercise period, a number of equity securities of an issuer equal to a fixed percentage of the outstanding equity securities at the time of exercise. It is drafted in favor of the investor, but aims to be reasonable and includes customary provisions commonly included in many warrants. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A form of penny warrant to be used in connection with the financing of a private company, including in a private equity or venture capital transaction. This agreement sets out the terms and conditions by which the holder of a warrant receives the right to purchase, for a set exercise period, a specific number of equity securities of an issuer for a nominal exercise price. It is drafted in favor of the investor, but aims to be reasonable and includes customary provisions commonly included in many warrants. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A selection of boilerplate clauses for corporate and commercial agreements. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

A standard clause in many LLC agreements, a drag-along provision gives a majority member wishing to sell to an unrelated third party all or a substantial percentage of its membership interests in the company the right to force the other members to also sell all or a portion of their membership interests to such third party. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A provision in an LLC agreement that gives an employee of a company or any of its subsidiaries the right under certain circumstances to sell (or put) the membership interests of the company held by that employee to the company. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard clause in many LLC agreements that requires a member who wants to sell any portion of its membership interests in a company to offer those membership interests to the other members before offering them to a third party. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard clause in many LLC agreements, a tag-along (or co-sale) provision gives minority members the right to participate on a pro rata basis in any controlling member's sale of its membership interests in the company to a third party. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A covenant which restricts the seller from soliciting other potential buyers after the purchase agreement is signed. This covenant can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard deadlock provision in a stockholders agreement which contemplates mediation as the deadlock resolution procedure. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A provision in a stockholders agreement that gives the company the right under certain circumstances to purchase (or call) the shares of the company held by an employee of the company or any of its subsidiaries. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard clause in many stockholders agreements, pre-emptive rights give the stockholders the right to buy a pro rata portion (based on their ownership interest) of any future stock issuances the company makes. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard clause in many stockholders agreements which requires a stockholder who has received an offer to purchase all or any portion of its shares in a company from a third party to first offer those shares to the other stockholders. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A timeline highlighting the various stages of an auction.

A checklist that summarizes the factors that influence whether a particular security is classified as debt or equity for US federal income tax purposes (for a more detailed discussion on this topic, see Practice Note, Debt v. Equity: US Tax Classification of Securities).

This Checklist sets out the most important sections of an equity commitment letter and lists negotiating points for both the sponsor and the seller in connection with a private equity leveraged buyout (LBO).

This Checklist outlines the special characteristics that commonly differentiate growth equity investments from other minority investments (such as seed or early stage venture capital investments) and the issues and considerations specific to these investments when negotiating and documenting them. This Checklist is applicable only to growth equity investments made in private companies.

This Chart shows the dates that key reforms to the federal securities laws made by the Jumpstart Our Business Startups Act (JOBS Act) become effective.

This Checklist compiles questions to consider when preparing a comprehensive stockholders agreement. The answers to these questions will help determine the form of agreement to use, identify precedents that may be helpful and highlight areas requiring more discussion.

A timeline showing the typical progression of a section 363 sale. For more information on section 363 sales, see Practice Notes, Buying Assets in a Section 363 Bankruptcy Sale: Overview and Key Differences in Purchase Agreements for Section 363 Sales.

In its fourth annual survey of remedies in merger agreements for buyer breach, PLCWhat’s Market studied the past year in leveraged public deals to analyze how dealmakers are allocating the risk of financing failure. This year’s edition revealed more uniformity in the drafting of remedies for buyer breach and other techniques for risk sharing.

A study analyzing the remedies available to target companies in public merger agreements for a buyer's failure to close the transaction because of a breach or financing failure. The study covers all merger agreements entered into in 2012 for debt-financed acquisitions of US, publicly traded companies (excluding REITs) with a deal value of at least $100 million. The 2013 edition includes detailed analysis of the remedy models, financing covenants and Xerox provisions seen in 2012.

A Q&A guide to private equity law in Brazil. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Hong Kong. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  The Q&A is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Italy. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  The Q&A is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Norway. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  The Q&A is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in United States. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  The Q&A is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to venture capital law in Austria. The Q&A gives a high level overview of the venture capital market; tax incentives; fund structures; fund formation and regulation; investor protection; founder and employee incentivisation and exits. To compare answers across multiple jurisdictions visit the Venture Capital Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to venture capital. For a full list of jurisdictional Q&As visit www.practicallaw.com/venturecapital-mjg.

A Q&A guide to venture capital law in Germany. The Q&A gives a high level overview of the venture capital market; tax incentives; fund structures; fund formation and regulation; investor protection; founder and employee incentivisation and exits. To compare answers across multiple jurisdictions visit the Venture Capital Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to venture capital. For a full list of jurisdictional Q&As visit www.practicallaw.com/venturecapital-mjg.

A Q&A guide to venture capital law in Sweden. The Q&A gives a high level overview of the venture capital market; tax incentives; fund structures; fund formation and regulation; investor protection; founder and employee incentivisation and exits. To compare answers across multiple jurisdictions visit the Venture Capital Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to venture capital. For a full list of jurisdictional Q&As visit www.practicallaw.com/venturecapital-mjg.

A Q&A guide to venture capital law in UK (England and Wales). The Q&A gives a high level overview of the venture capital market; tax incentives; fund structures; fund formation and regulation; investor protection; founder and employee incentivisation and exits. To compare answers across multiple jurisdictions visit the Venture Capital Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to venture capital. For a full list of jurisdictional Q&As visit www.practicallaw.com/venturecapital-mjg.

An expert Q&A with Jeffrey Ross of Fried, Frank, Harris, Shriver & Jacobson LLP on the US District Court for the District of Massachusetts's recent holding in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, that private equity funds were not a “trade or business” and therefore were not jointly and severally liable under the Employee Retirement Income Security Act of 1974 (ERISA) as members of the same controlled group as one of their portfolio companies.

On February 13, 2013, Practical Law Company presented Year in Review: Public M&A Trends and Highlights from 2012, a 30-minute webinar that reviewed critical M&A trends, unique transactions and highlights of public M&A activity in 2012. You can access the recorded webinar here. The slides reviewed during the presentation can be found at the link below.

A Q&A guide to private client law in China. The Q&A gives a high level overview of tax; tax residence; inheritance tax; buying property; wills and estate management; succession regimes; intestacy; trusts; co-ownership; familial relationships; minority and capacity, and proposals for reform. To compare answers across multiple jurisdictions, visit the Private client Country Q&A tool. The Q&A is part of the PLC multi-jurisdictional guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-mjg.

2012 has been marked by favorable debt markets that continue to shape strategy in the private equity industry. This Article discusses how sponsors have taken advantage of the rising availability of inexpensive debt, including by adding flexibility to portfolio company capital structures, completing more buyouts and secondary buyouts and gaining liquidity from leveraged dividend recapitalizations.

A Q&A guide to private equity law in Argentina. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool. The Q&A is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg

A Q&A guide to venture capital law in South Korea. The Q&A gives a high level overview of the venture capital market; tax incentives; fund structures; fund formation and regulation; investor protection; founder and employee incentivisation and exits. To compare answers across multiple jurisdictions, visit the Venture Capital Country Q&A tool. This Q&A is part of the PLC multi-jurisdictional guide to venture capital. For a full list of jurisdictional Q&As visit www.practicallaw.com/venturecapital-mjg.

A review of public M&A activity in the first half of 2012.

An assessment of the international implications of the US Foreign Account Tax Compliance Act.

This Article provides an overview of the Foreign Account Tax Compliance Act's (FATCA's) impact on foreign funds and other foreign investment entities, in light of proposed regulations released in February 2012 by the IRS and Treasury Department.

On January 26, 2012, Practical Law Company presented Year in Review: Public M&A Trends and Highlights from 2011, a 30-minute webinar on 2011's most important M&A developments, unique transactions and other market trends. You can access the recorded webinar here.

An article about recent developments relating to the US Foreign Account Tax Compliance Act.

This article looks at the conditions affecting private equity deals in emerging markets, using Turkey as a case study, looking at the: Market conditions. Legal issues affecting investment with special attention to the new Turkish Commercial Code, transaction leveraging issues and commonly used investment structures. Tax issues. The article is part of the PLC multi-jurisdictional guide to private equity law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Belgium. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in China. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Japan. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in Portugal. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg

A Q&A guide to private equity law in the Russian Federation. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

A Q&A guide to private equity law in South Korea. This Q&A is part of the PLC multi-jurisdictional guide to private equity. It gives a structured overview of the key practical issues including, the level of activity and recent trends in the market; investment incentives for institutional and private investors; the mechanics involved in establishing a private equity fund; equity and debt finance issues in a private equity transaction; issues surrounding buyouts and the relationship between the portfolio company's managers and the private equity funds; management incentives; and exit routes from investments. Details on national private equity and venture capital associations are also included. To compare answers across multiple jurisdictions, visit the Private Equity Country Q&A tool.  For a full list of jurisdictional Q&As visit www.practicallaw.com/privateequity-mjg.

This table provides a high-level summary of the tax treatment applicable to the main private equity vehicles used in 20 major jurisdictions worldwide. The contents of the table have been derived from Question 7 of the Country Q&A. For the full answers and for information relating to other private equity law matters, refer to the Private Equity Country Q&A tool.

These slides are excerpted from our 2011 study on reverse break-up fees and specific performance and were used during the webinar, Reverse Break-up Fees and Specific Performance: Analyzing Public Deal Remedies from 2010, given by PLC on May 5, 2011. To access the full study, see Reverse Break-up Fees and Specific Performance: A Survey of Remedies in Public Deals (2011 Edition). You can access the webinar here.

A study analyzing the remedies available to target companies in public merger agreements for a buyer's failure to close the transaction because of a breach or financing failure. The study covers all merger agreements entered into in 2010 for acquisitions of US-domiciled, publicly traded companies (excluding REITs) with a deal value at signing of at least $100 million.

An expert Q&A with Howard Cubell of Goodwin Procter LLP on the tax incentives relating to investment in qualified small business stock provided under the Small Business Jobs and Credit Act of 2010 and the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.

This Article looks at leveraged buyout (LBO) financing activity in 2010, assesses the extent to which financing trends and changes to loan agreement provisions identified last year have held and considers some new developments in acquisition financing trends for 2011.

These slides summarize key trends and highlights from public M&A activity in 2010 and were used in connection with a webinar, Year in Review: Public M&A Trends and Highlights from 2010, given by PLC on January 13, 2011.  You can access the webinar here.

This chapter considers Sharia funds and Sharia-compliant investments, including the analysis of structuring and marketing a Sharia-compliant investment fund. This chapter is part of the PLC multi-jurisdictional guide to Investment Funds, which can be found at  www.practicallaw.com/investmentfunds-mjg.

The Carbon Reduction Commitment Energy Efficiency Scheme (CRC) aims to assist in achieving reductions in CO2 emissions, targeting non-intensive energy users. The deadline for initial registration has now passed. This article reviews the current status of CRC and its implementation, as well as the private equity industry's concerns about the scheme, and considers the actions private equity firms should take to prepare themselves for the second phase of the scheme, commencing on 1 April 2011.  

These slides summarize key trends and highlights from public M&A activity in the third quarter of 2010 and were used in connection with a webinar given by PLC on October 14, 2010. 

This article examines recent developments in private equity investment in Latin America, outlines some key common characteristics of the Latin American private equity market and analyses legal and market developments in Brazil, Chile and Colombia.

Sponsors evaluating exit opportunities should consider the changes to certain exit methods that have emerged in 2010. This Article examines these trends in private equity exits, including the return of secondary buyouts, the ability to conduct IPOs and the availability of financing for dividend recapitalizations.

Professor Steven M. Davidoff explains how seemingly minor details in acquisition agreements can have a significant impact on a transaction and identifies various provisions to which deal lawyers should pay particular attention.

An analysis of the recent surge of private equity activity in China.

This article examines recent IPOs of private equity-owned companies in the US, the UK and Spain and the broader trends they reveal.

Alan M. Klein of Simpson Thacher & Bartlett LLP provides his insights on recent developments in private equity M&A.

An expert Q&A with Kim Blanchard of Weil, Gotshal & Manges LLP and Andrew Solomon of Sullivan & Cromwell LLP on the Foreign Account Tax Compliance Act (FATCA).

This Article discusses the Foreign Account Tax Compliance Act (FATCA) provisions included in the Hiring Incentives to Restore Employment (HIRE) Act to target offshore tax evasion.

Professor Steven M. Davidoff examines strategies for dealing with the SEC’s "going-private" enhanced disclosure requirements in acquisitions involving affiliates.

The reduced availability of leveraged acquisition financing in the US has led to a number of developments in the negotiation and structuring of private M&A transactions. Tools designed to bridge financing gaps are examined.

Regulation promises to be the hot topic of 2010, with both EU and US lawmakers looking to bring private equity fund managers within the regulatory net. This article looks at the different approaches proposed on each side of the Atlantic, and considers the impact of the proposals for private equity firms operating on a global basis. 

An article on European and UK trends in private M&A in the post-Lehman deal landscape.

This article looks at the factors to be examined to prevent problems arising from the economic climate, which is experiencing turbulence. These factors include the: Directors' fiduciary duties and how these duties may shift as the company's financial condition deteriorates. Composition of the board of directors and the capabilities of the portfolio company's management team. Company's debt agreements and business contracts that may require renegotiation. Company's directors and officers (D&O) indemnities and insurance policies.

An article discussing change of control provisions in debt agreements.

Distressed debt investment can yield high returns but the risks are also significant. This article reviews the reasons why investment firms buy the debt of companies in distress and outlines hurdles that distressed debt investors must overcome.

Professor Steven M. Davidoff writes on the potential future shift in private equity deal structures.

This Article discusses the implications of the Clear Channel Outdoor, Inc. v. Knupfer case. Click here to view the full text.

This Article discusses new strategies for stalking horses in section 363 bankruptcy sales.

An overview of the negotiations involved in high-yield indentures in the private equity context and the covenants typically found in the indenture.

A consideration of the issues involved in investing in distressed debt in the UK and US markets.

Professor Steven M Davidoff reports on changes in market practice in US takeovers following the credit crunch.

The IRS and Treasury Department issued final regulations on IRC Section 336(e) deemed asset sale elections.

The US District Court for the Southern District of New York issued an opinion in Capmark Financial Group Inc. v. Goldman Sachs Credit Partners L.P. dismissing plaintiffs' insider preference claim against the debtors' lenders, despite the lenders' affiliates holding equity in the debtors.

The SEC's Division of Trading and Markets has granted no-action relief to a second funding platform that will match angel and other accredited investors with start-up companies without registering with the SEC as a broker-dealer. 

Following its release this February of FAQs clarifying the availability of an exemption from broker-dealer registration created by Title II of the JOBS Act, the SEC's Division of Trading and Markets has granted no-action relief to a funding platform that currently appears to be complying with the exemption.

The Delaware Court of Chancery held in Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH that a reverse triangular merger does not trigger an "assignment by operation of law" provision.

A discussion of how the disclosing party and the recipient negotiate the definition and disclosure of "Evaluation Material" in confidentiality agreements for M&A transactions.

The IRS and Treasury Department issued final Treasury regulations addressing withholding and information reporting requirements under the Foreign Account Tax Compliance Act (FATCA).

Financial Crimes Enforcement Network (FinCEN) further extends the deadline to file a Report of Foreign Bank and Financial Account (FBAR) by one year to June 30, 2014 for filing individuals that were previously extended by FinCEN Notice 2012-1.

The IRS released an announcement that delays certain deadlines under the Foreign Account Tax Compliance Act (FATCA) and provides additional guidance on grandfathered obligations.

A recent merger agreement included a unique clause that stated the buyer was being required to make a representation relating to its compliance with the new Hart-Scott-Rodino associate rules.

US District Court for the District of Delaware held in Delaware Coalition for Open Government v. Honorable Leo E. Strine, Jr. that the new confidential judicial-arbitration procedures established under Delaware law are unconstitutional.

The Treasury Department published a model intergovernmental agreement to implement FATCA in consultation with France, Germany, Italy, Spain and the UK.

The Treasury Department announced a new intergovernmental framework to implement FATCA in joint statements with Japan and Switzerland.

The SEC announced that it is now accepting public comment on the Jumpstart Our Business Startups Act (JOBS Act).

President Obama signed into law the Jumpstart Our Business Startups (JOBS) Act.

The FDIC, OCC and FRB jointly issued proposed guidelines on leveraged lending, revising the agencies' leveraged finance guidelines issued in April 2001.

The Federal Reserve Board (FRB) extended the comment period for its proposed rules implementing enhanced prudential standards for systemically significant financial institutions (SSFIs).

The SEC adopted amendments tightening the rule that permits registered investment advisers to charge performance fees to qualified clients, including increases to certain dollar thresholds that would need to be met before performance fees can be charged.

The IRS issued proposed regulations addressing withholding and information reporting requirements under the Foreign Account Tax Compliance Act (FATCA).

The federal banking agencies have extended the comment period on the proposed rules implementing the Volcker Rule until February 13, 2012.

On December 20, 2011, the Federal Reserve Board issued proposed rules under the Dodd-Frank Act on the regulation of systemically significant financial institutions.

On October 24, 2011, the SEC approved filing fees for Form ADV and Form PF. 

On October 25, 2011, the SEC announced the agenda for the first meeting of its Advisory Committee on Small and Emerging Companies, which is scheduled to take place on October 31, 2011 at 9 a.m. EDT.

On October 11, 2011, the federal banking agencies issued for public comments proposed rules implementing the Volcker Rule under Section 619 of the Dodd-Frank Act.

An update on the IRS's revision of Notice 2011-53 to include withholdable payments to non-financial foreign entites in the phased implementation schedule for withholding under the Foreign Account Tax Compliance Act (FATCA) enacted as part of the Hiring Incentives to Restore Employment Act of 2010.

An update on the SEC's order raising certain dollar thresholds that would need to be met before investment advisers can charge their qualified clients performance fees under the Dodd-Frank Act.

An update on the US Treasury Department's extension of its Treasury International Capital (TIC) requirement that certain entities provide data on long-term, cross-border securities on Form SLT beginning September 30, 2011.

An update on the extension of the Report of Foreign Bank and Financial Accounts (FBAR) filing deadline for 2009 and previous calendar years for certain individuals with signature authority over foreign financial accounts.

An update on the extension of the Report of Foreign Bank and Financial Accounts (FBAR) filing deadline to June 30, 2012 for certain officers and employees with signature authority over foreign financial accounts.

An update on the Delaware Court of Chancery's opinion in Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH holding that a reverse triangular merger may constitute an assignment by operation of law where the plaintiff presents evidence that the defendant converted the target into a shell company immediately following the merger.

An update on In re TOUSA, in which the US District Court for the Southern District of Florida affirmed the decision of the US Bankruptcy Court for the Southern District of Florida, holding that the lenders' liens on collateral granted under an existing revovling creadit agreement were not subject to fraudulent conveyance attack under section 548 of the Bankruptcy Code, even though the agreement was amended and the revolver was drawn on after the borrower and certain of its subsidiaries were allegedly insolvent.

An update on In re TOUSA where the US District Court for the Southern District of Florida (District Court) quashed the decision of the US Bankruptcy Court for the Southern District of Florida (Bankruptcy Court) which held that TOUSA, Inc.'s $420 million payment to certain of its lenders constituted a fraudulent transfer under section 548 of the Bankruptcy Code. Calling the Bankruptcy Court's decision "clearly erroneous," the District Court helped affirm the validity of corporate lending practices based on credit support from subsidiary guarantors.

An update on the SEC and the CFTC issuing joint proposed rules to require certain investment advisers to report information to the SEC using a new reporting form (Form PF) and for certain commodity pool advisers and commodity trading advisers registered with both the SEC and CFTC to satisfy certain CFTC filing requirements.

An update on the FSOC's approval of a study and recommendations on implementing the Volcker Rule under the Dodd-Frank Act.

An update on the SEC proposing new rules and rule amendments under the Investment Advisers Act of 1940 to implement provisions of the Dodd-Frank Act.

An update on the Delaware Court of Chancery's opinion limiting preferred stockholders' rights to force a mandatory redemption when the company's board of directors determines that it does not have the available cash to make a redemption and continue as a going concern.

The European Parliament and Council of the European Union have reached an agreement on key aspects of the proposed Alternative Investment Fund Managers Directive which include the rules on the passporting system, depositary liability, capital requirements and the use of leverage, as well as asset-stripping and remuneration principles.  

An update on the IRS's issuance of preliminary guidance on implementing the Foreign Account Tax Compliance Act (FATCA) withholding and reporting provisions enacted as part of the Hiring Incentives to Restore Employment Act of 2010 (HIRE Act).

An update on President Obama signing into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

An update on a Canadian tax law change that is likely to increase US venture capital and private equity investments in private Canadian companies.  

An update on the New York Court of Appeals decision in DDJ Management, LLC v. Rhone Group LLC holding that lenders may reasonably rely on a borrower's representations and warranties about the accuracy of  its unaudited financial statements.

An update on the In re CNX Gas decision. Less than three weeks after the Cox Radio decision, the Delaware Court of Chancery revisits the appropriate standard of review for tender offers by controlling stockholders.

An update on private equity firms targeting troubled banks as acquisition targets.

An update on the FTC's extension of the deadline for public comments on the proposed revisions to its Horizontal Merger Guidelines.

An update on the FDIC's release of new Q&A's regarding its August 2009 policy statement on the acquisition of failed banks by private equity investors.

An update on the Delaware Bankruptcy Court's denial of a motion to dismiss fraudulent conveyance claims related to an LBO transaction in a suit brought by one of the debtors in the Mervyn Holdings, LLC bankruptcy.

An update on the Restoring American Financial Stability Act of 2010.

An update on the different ways buyers and sellers have allocated pre-closing risk in recent public mergers.

An update on the FDIC's release of Q&A's regarding its August 2009 policy statement on the acquisition of failed banks by private equity investors.

An update on a New York appellate court decision in Edelman v. Starwood Capital Group, holding that a confidentiality stamp and an oral agreement were insufficient to protect proprietary information compiled in the course of a proposed acquisition that was later abandoned.

An update on notable definitions of material adverse change in two recent M&A transactions.

An update on a First Circuit decision concerning whether a purchase agreement with an earn-out contained an implied contractual term under Massachusetts state law requiring the buyer to use reasonable efforts to develop and promote the acquired business.

An update on a new draft of the Private Fund Investment Advisers Registration Act that differs from the prior draft released earlier this year by exempting venture capital funds from compliance.

An update on the FDIC's approval of a policy statement providing guidance on required standards for the acquisition of failed banks by private equity investors.

An update on a Delaware Court of Chancery decision finding a reasonable inference of a breach of the duty of loyalty by directors who approved a transaction to the benefit of a corporation's preferred stockholders and detriment of the common stockholders.

An update on Kohlberg Kravis Roberts & Co.'s (KKR's) plans to achieve a "backdoor" initial public offering (IPO) by merging with Euronext-listed KKR Private Equity Investors.

An update on the merger of Kohlberg Kravis Roberts & Co. with a European affiliate with plans to eventually go public in the US.

An update on the joint statement released by the Treasury Department, the Federal Reserve Board of Governors and the FDIC listing the firms selected to participate as fund managers in the Private-Public Investment Program (PPIP).

An update on Report of Foreign Bank and Financial Accounts (FBAR) requirements for investors in foreign hedge funds and private equity funds.

An update on the June 30, 2009 filing deadline for the Report of Foreign Bank and Financial Accounts (FBAR).

An update on legislation which would require advisors to private funds including hedge funds, private equity funds and venture capital funds to register with the SEC.

An update on continued hedge fund withdrawals in the first quarter of 2009.

An update on private equity firms' interest and reservations regarding TALF.

An update on the effectiveness of the revised thresholds for the pre-M&A notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act).

An update on the FDIC-arranged sale of IndyMac Federal Bank.

An update on a report on hedge fund redemptions by TrimTabs Investment Research and BarclayHedge Ltd.

An update on the release by the two private-sector committees established by the President's Working Group on Financial Markets of their finalized sets of best practices for asset managers and hedge fund investors.

An update on the FDIC's approval of a letter of intent to sell IndyMac.