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Drafting Transfer Provisions in M&A Agreements

(164 reviews)

Produced on November 16, 2020

$ 89 Contract, Business, Corporate, & Securities, and Mergers & Acquisitions In Stock
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Course Information

Time 1h 1m
Difficulty Intermediate

Course Description

This course, presented by Jay Coogan of Ballard Spahr and Kimberly deBeers of Skadden, Arps, Slate, Meagher & Flom, will examine the issues associated with negotiating and drafting the most common transfer provisions governing transfers of equity interests in private companies, including provisions governing permitted transfers to affiliates, rights of first offer (ROFOs), rights of first refusal (ROFRs) and tag-along and drag-along rights. In addition, there will be a discussion of provisions that require a company to buy equity from an investor or can compel the investor to sell to the company upon the company’s request. These provisions can be found in Stockholder Agreements, Limited Liability Agreements or other written arrangements among investors.

In negotiating and drafting these complex provisions, there are a number of key issues to focus on to ensure that these provisions function smoothly throughout the life of the investment and reflect any bargained-for protections. This program will review these key issues, typical approaches, common pitfalls, and how perspectives can change depending on whether a lawyer is representing a majority or minority investor in the company.

Learning Objectives:

  1. Examine the typical transfer provisions often adopted in a private company and the purposes of such provisions, including permitted transfers, rights of first offer or refusal, tag-along rights, drag-along rights and puts and calls

  2. Discuss key issues that are often negotiated while drafting

  3. Review common pitfalls to avoid when negotiating and drafting common transfer provisions

Credit Information

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Jay Coogan

Ballard Spahr

Jay Coogan represents private equity, venture capital, and other investment firms—as well as privately held companies—in mergers and acquisitions, securities offerings, venture capital financings, and the establishment of startup and emerging businesses.

Jay's clients invest in and operate enterprises spanning a range of industries, including technology, manufacturing, business services, consumer products, and health care. He also works with institutional investors in the purchase, sale, financing, and operation of their portfolio companies.

As outside general counsel to private companies, Jay advises on legal and business matters, such as regulatory matters, entity formation, corporate governance, capitalization, equity compensation, capital raising, and customer or vendor contracts.

The health care industry is a particular area of strength. Jay has advised health systems, MSOs, rehab, senior care, and HCIT companies on transactions and compliance, and he is the former General Counsel of a NYSE-traded national medical rehabilitation services provider.

His experience includes:

  • helping private equity firms build out their portfolios with acquisitions, grow their portfolio companies, and successfully execute exits
  • representing venture capital firms, as well as startups and emerging businesses seeking growth and funding
  • advising investment banks and issuers in securities offerings
  • serving as outside general counsel to a variety of enterprises, advising boards, management, and controlling stockholders on matters including litigation management, compliance investigations, IP management, human resources issues, and strategic planning
  • helping long-established family businesses and their controlling families through transition and sale situations
  • supporting family offices and closely-held investment companies in capital raising and restructuring matters

Kimberly deBeers

Skadden, Arps, Slate, Meagher & Flom LLP

Ms. deBeers regularly represents private equity firms, as well as various private and public corporate clients, on a wide variety of acquisition and sale transactions, leveraged buyouts, capital transactions, spin-offs and various types of recapitalizations and other financing transactions.

She represented O’Reilly Automotive in its $850 million acquisition of CSK Auto; Arclin Chemical in its sale to a private equity fund; US Airways in its LaGuardia/Reagan airport asset transaction with Delta Airlines; Huron Consulting Group Inc. in its initial public offerings; Black Diamond in its acquisitions of interests in Empire Generating, GST AutoLeather, White Birch Paper Company, Vertellus Specialties, and IAP Worldwide Services; and the O’Brien family group in its acquisition of control of R. J. O’Brien and Associates. She also has represented ACI Worldwide, Inc., American Airlines, ION Media Networks, Imaging Advantage LLC, Kraft Foods and Mondelēz, Werner Ladder and O’Reilly Automotive on various matters.

Ms. deBeers’ private equity practice has involved the representation of a number of private equity funds and companies in connection with significant transactions, including Black Diamond Management, BNY Mezzanine Partners, Burke Partners, LP, DE Shaw, Grey Mountain Partners, Goldman Sachs, Lake Capital Partners, Morgan Stanley, MSD Capital, Silver Point Capital, Vernon Partners and Victory Park Capital. In addition, Ms. deBeers has advised management and senior executives of companies in connection with a variety of transactions involving sales or alterations to their company relationship.

Her international transaction experience includes, among others, advising foreign buyers of U.S. assets; Reichhold Chemical, a worldwide company; GAB Robins in the sale of its international claims management business to Cunningham Lindsey; the combination of LaSalle Partners Incorporated and Jones Lang Wootton in matters throughout Europe, Asia and Australia; various clients in their business expansion throughout the world; and Inter Retail Holdings in its relationship with Bombay stores during Bombay’s bankruptcy proceeding.

Ms. deBeers repeatedly has been selected for inclusion in both Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America. She was named one of Crain’s Chicago Business’ 2020 Notable Women in Law, one of the Most Powerful and Influential Women in Illinois by the National Diversity Council in 2016, and one of the 2014 BTI Client Service All-Stars by The BTI Consulting Group for providing outstanding client service. Ms. deBeers speaks yearly at the Practicing Law Institute on securities issues relating to mergers and acquisitions.


Eric H.

Outstanding presentation

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