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Keeping the IPO Door Open – What Every PE Portfolio Company Should be Doing Now to Maintain Optionality for an IPO in the Future

Alexander D. Lynch — Mon, 09 Jan 2023 21:13:40 +0000

In 2022, many portfolio companies delayed their IPOs and will look to either go public or be acquired in 2023 or 2024 as markets improve. While many sponsors will exit their investment through a sale to a strategic buyer or another PE firm, there may be periods in the next year or two in which […]

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When Is a Person’s Status as an Affiliate Relevant?

Glenn D. West — Thu, 09 Sep 2021 02:04:00 +0000

When is a person’s status as an “affiliate” determined—when the contract restricting an affiliate’s activities is entered into, or at the time an alleged violation of the contractual restriction occurs? Stated differently, can a contracting party become responsible for an alleged violation of a contract restricting a party and “its affiliates” by the actions of a […]

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Selling Your Portfolio Company Subject to a New York Law Governed Contract—Identifying a Hidden Term Built-In by New York’s Common Law: the Mohawk Doctrine

Glenn D. West — Mon, 10 Jun 2019 01:17:38 +0000

On July 4, 1776, the thirteen American colonies formally severed their ties to the English throne and parliament. It took a war (which commenced a little over a year earlier) to actually effectuate the severing of those ties. But with the Treaty of Paris in 1783, England acknowledged that the United States of America was […]

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Preserving Privileged Communications in the Sale of a Portfolio Company—that Clause in the Back of the Agreement Can Actually Work

Glenn D. West — Thu, 06 Jun 2019 13:46:33 +0000

In Great Hill Equity Partners IV, LP v. SIG Growth Equity I, LLLP, 80 A.3d 155 (Del. Ch. 2013), the Delaware Court of Chancery held that the privilege existing with respect to communications between the target’s counsel and its officers, directors and selling stockholders, in connection with the negotiation of a merger agreement, belongs to […]

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Keeping the IPO Door Open – What Every PE Portfolio Company Should be Doing Now to Maintain Optionality for an IPO in the Future

Alexander D. Lynch — Mon, 22 Apr 2019 20:13:24 +0000

Portfolio companies do not stay portfolio companies forever – typically they either are sold or go public. Most sponsors will exit their investment through a sale to a strategic buyer or another PE firm. However, markets go up and down, and there may be periods in which it is more advantageous to complete an IPO […]

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Claire’s Stores, Inc.: A Proactive Approach to Portfolio Company Governance

Private Equity Alert — Tue, 04 Dec 2018 08:14:11 +0000

The recent success in Claire’s Stores’ $2.1 billion restructuring reinforces the importance of a proactive approach to corporate governance for closely held or sponsor-owned portfolio companies. Through its restructuring, Claire’s, the leading mall-based retailer for teens and young girls, successfully reorganized in a high profile restructuring completed in October 2018. Claire’s eliminated nearly $1.9 billion of […]

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Lies, Damned Lies and PE Statistics

Douglas P. Warner — Fri, 29 Jan 2016 20:32:49 +0000

The independent surveys are all in. Depending upon which one you read, 2015 was either a great or a subpar year for the private equity deal market in the U.S. Perhaps it was both depending upon whether you were a seller or a buyer. In any event, as the year developed the challenges for private […]

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Writing Indemnification and Advancement Provisions to Protect Former Officers and Directors

Glenn D. West — Fri, 18 Sep 2015 23:19:09 +0000

There is both a distinction and a definite difference between an advancement obligation and an indemnification obligation under Delaware corporate law. Indeed, a simple obligation to indemnify an individual does not by itself include any obligation to advance expenses that may ultimately be indemnifiable. And board members want to be covered for one and the other […]

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