The M&A Case Study Experiment - Part 1

[jackismall]

1. There are several reasons why Digion may want to purchase Immersive. This could include the acceleration of Digion's growth. The company has recently raised large amounts of funding and the purchase of an up-and-coming company could speed up growth to satisfy shareholders. Digion's CEO has also directly stated that she is impressed by the co-founders of Immersive. Therefore, the merger also appears to be the acquisition of talent. Further reasons could include the acquisition of Immersive's "popularity among game developers" and software.

2. With regards to the poaching of employees, Digion should include a non-solicitation clause within the agreement to ensure that their employees are not poached by Immersive. The scope should be carefully considered, but a clause similar to 7.3 should be sufficient.

In terms of Tristan joining Digion, a meeting could be held with Leon and Maria to discuss Tristan - they may vouch for his character or agree with Elena's initial assessment. If the goal is to remove him from the company, our HR team should conduct further due diligence into the nature of Tristan's employment contract. Removing him from the company could be very difficult and costly and this will depend on the terms of his employment.

3. Clause 5 outlines the various conditions that must be satisfied before the acquisition can go ahead. For example, taking clause 5.7, if the acquisition is referred to the CMA for a phase II investigation, Digion can call the acquisition off as a condition has not been satisfied. However, they do have discretion to waive these conditions and continue with the purchase if they please.

4. To limit the seller's liabilities, several clauses could be included. For example, a fixed limitation clause that limits damages for breach of warranties to the value of the purchase price of Immersive. This ensures that the seller's liability is capped and they do not face unlimited losses. By guarding the seller against uncapped risks, the risk is more fairly apportioned between both the seller and the buyer.

5. As Immersive is Frankfurt-based, there is a real possibility they would like to contract for disputes to be resolved in the German courts, or even use an arbitrator. With a presence in the UK, Digion may prefer the UK courts as this would be more convenient.

 

[jackismall]

Thinking about commercial factors, I considered the German Competition Act and recent reports that Germany is considered a 'Big Tech Buster', especially considering Immersive are German-based.

However, I'm not too sure which jurisdictions Competition Authority would cover this merger - would it be the CMA under UK law, German law, or EU law (or all three)?

Any help, or advice on how to weave this into an M&A case study would be much appreciated!

 

[Gianina]

Q1. Digion is seeking expansion In Germany, growth of the company, and client base.

Q2. She can add a clause in the contract which restricts Tristan from soliciting her employees.

Q3. To prevent the acquisition from outside events which could change the acquisition.

Q4. I’d advise to carefully negotiate the warranties and indemnities.

Q5. Because Digion;s headquarters are in London; therefore, he wants to rely on the laws of England in case of litigation.

 

[hp4300]

Q1)
Digion is actively expanding growing with three recent acquisitions in the past year, Immersive is a particularly attractive buy as its co-founders, Leon Alexander and Maria May, have a vast experience in game server hosting thus matching Digion's strengths. Also Immersive is popular among game developers, this acquisition will allow Digion to gain those cliental and further boost their own reputation.

Q2)
I would recommend negotiating a non-solicitation clause with Tristan which would prevent him from attempting to recruit or hire Digion employees. However, such a clause would need to be agreed by Tristan, potential incentives could include offering equity as it appears that Elena does not wish for the employment relationship to continue following the acquisition (thus ruling out bonus related incentives). Alternatively, incentives could be given to the employees which Tristan wishes to poach to prevent them from leaving Digion (for example performance related bonuses).

Q3)
Clause 5 states the conditions precedent which must be satisfied or waived before the deal can conclude. They are useful as there is no obligation to on either party complete the transaction until the CPs are met.

Q4)
Cap on damages - add a clause which limits damages for breach of warranties/indemnities. This ensures that the seller's liability is capped and they do not face unlimited losses, they have greater certainty and are aware of the maximum level of compensation which may need to be paid out. This ensures that the deal is not unprofitable for the seller.
Time limit - add a clause which limits the time after which a claim can be brought, this again adds to certainty as the seller will know that they will not be subject to claims after a certain time.

Q5)
Digion has HQ in London and so likely has a working relationship with lawyers specialising in English law. This means Digion would avoid the additional costs associated with dealing with German law (e.g. hiring German lawyer etc).

 

[sahmadalattas]

Why do you think Digion wants to buy Immersive?

• Digion has expanded across the UK, Canada and US over the past year, so this acquisition is a continuation of that growth in the German and wider European market.
• Given Immersive's popularity amongst game developers, it aligns with and could help Digion achieve its strategic goal of making online game development more efficient, effective, and accessible for developers.
• Leon Alexander and Maria May's experience with game server hosting can be leveraged to increase the capabilities of Digion's cloud technology in supporting large numbers of players within huge digital environments.
• Some of the funding received from VC firms, may have been given on the basis that the money will be used for strategic or growth acquisitions.

How would you advise Elena handle the situation with Tristan?

• I would make his employment conditional on signing a contract that includes a non-solicitation clause, where a breach would result in a fine or termination and legal action depending on its severity.

What is the purpose of Clause 5 in Document 3?

• This is the Conditions Precedent that mitigates any risks that may materialise during the acquisition or post-acquisition. This allows Digion to back out of the deal under certain circumstances without facing the threat of legal liability from the Seller Party.

In Clause 7, note the phrase, 'The Seller’s liability under the warranties and indemnities shall be subject to limitations.' Suppose you were the lawyers acting for the Seller, what could you do to limit the Seller's liabilities? Why is this important?

• I would include both de minimus and de maximus clauses. The former restricts the ability of the buyer to bring a claim unless that claim is worth at least a minimum specified amount. The latter places a cap on the maximum amount that can be claimed for particular breaches of contract.

Why could it be important to Digion that 'the courts of England have exclusive jurisdiction to settle any dispute'?

• Reduces costs of having to hire external German counsel
• The long history of commercial rulings by the English courts creates a high level of predictability and legal certainty with the outcome of legal disputes
• English judgments are generally recognised and enforceable in other countries, so Digion will be better able to enforce rulings

 

[Hani]

Q1: The target company fits with Digions market strategy and gain more of a market share.
Q2: Tristian should have a non-compete and no-solicitation clause for a minimum of 1 year.
Q3: Acquisition does not happen until the conditions are satisfied.
Q4: include a cap on the amount and exempt liability to issues that have been disclosed.
Q5: The English courts will have jurisdiction which is good as Digion's HQ is here

 

[lunaisla03]

Q1. Digion is interested in acquiring Immersive for 3 reasons. Buying the company would allow Digion to:

• Expand their growth and position in the online gaming industry by combing their patented cloud technology and software abilities with Immersive’s expertise in multiplayer technology, valuable IP, and added popularity
• Gain access to specialised expertise not already available to them, as co-founders are experienced with game server hosting.
• Cut costs in the long-term by acquiring a contributor in the supply chain that enables products to be developed and distributed by themselves in-house, aligned with their goal of making online game development more effective, efficient, and accessible.

Q2. Elena should emphasise that a clause be included in the SPA prohibiting soliciting or poaching any of Digion’s employees for a set duration go time.

Q3. It sets out the conditions to be complied at every stage within the acquisition process with if the deal goes ahead to ensure it is in the best interest of both parties. This would essentially allow for a smoother process at every step, in terms of issuing necessary shares alongside granting consent and authority for due diligence, for instance. By attempting to ensure transparency at the out-set, Clause 5 sets clear Digion’s requests to outline any unwanted risks that would jeopardise the deal.

Q.4. -

Q5. Since Digion is a London-based company, any disputes would be better settled in England for Digion as the SPA would be governed by English law, rather than German law, and to allow for less uncertainty.

 

[KTT]

1. Why do you think Digion wants to buy Immersive?

There are several reasons why Digion is looking to buy Immersive

• To limit competition and increase its market share in the technology game development market
• To break into foreign markets, in this case, Germany and Europe
• To acquire a number of talented professionals from Immersive which will add to Digion’s expertise

1. How would you advise Elena handle the situation with Tristan?

I would advise that Elena calls Tristan or sends him a message addressing the issue with him directly, explaining why this has made her upset and why it erodes trust in the negotiations. It would be a good idea to mention that non-compete clauses are in the draft and will be in the finalised version of the SPA

1. What is the purpose of Clause 5 in Document 3?

Clause 5 sets out the draft conditions precedent that must be met before the sale can go ahead.

1. In Clause 7, note the phrase, 'The Seller’s liability under the warranties and indemnities shall be subject to limitations.' Suppose you were the lawyers acting for the Seller, what could you do to limit the Seller's liabilities? Why is this important?

As lawyers for the Seller, I would look to limit liabilities by introducing a time limit on when an action may be brought on the sale of the company. Other limitations can be made around the upper and lower limit of a claim brought in relation to the sale, as well as potential claims being limited only to matters which arose during his ownership of the shares or assets.
Limitations on liability are important for the seller because they protect the seller from having to pay out or be sued where the sale of the business does not work out or there are problems that arise post-sale.

1. Why could it be important to Digion that 'the courts of England have exclusive jurisdiction to settle any dispute'?

Dispute resolution clauses are important in that they decide which legal system will have the exclusive right to settle the dispute. Bringing an action in the English courts ensures a high degree of certainty and predictability owing to the England’s historic use of the common law system. England is a very popular choice for dispute resolution clauses because of its well-known and well-respected attitude towards ‘freedom of contract’, making it a good choice for commercial contracts.

 

[mdoeslaw]

1) Wants to further expand into other markets, are interested in benefiting from the expertise of the co-founders of Immersive and believe that will further enhance Digion's game development which would allow them to gain more traction therefore increase in popularity as well

 

[TCLA_Student]

Q1:
Leon Alexander and Maria May, the company's co-founders, have vast expertise running gaming servers, which is one of the main factors driving Digion's interest in purchasing Immersive. According to Elena Alyson, CEO of Digion, Immersive was also very well-liked by game developers. In order to grow its own company and enhance its distributed simulation software products for video games and corporate applications, Digion may be thinking of purchasing Immersive.

Q2:
Advise to include a non-solicitation provision in the prerequisites. The provision, which functions as a restrictive covenant, forbids Immersive and its personnel, including Tristan, from approaching Digion personnel about employment. It is important to negotiate the clause's scope and duration carefully.

Q3:
Lists the conditions under which the purchase is to occur are listed in Clause 5. However, as stated in Section 1.2, it is simply illustrative and not legally enforceable. Therefore, fulfilling these requirements does not ensure the acquisition.

Q4:
If I were the acting lawyer for the Seller, I would set a financial cap on the obligations and warranties. In other words, if the events or assertions of existing fact protected by the indemnities or guarantees, respectively, occur, I would cap the amount that the Seller may be obliged to reimburse the Buyer for. I would also impose time restrictions on the terms, such that the buyer would no longer be able to utilise the indemnities or guarantees to pursue damages claims after a certain amount of time had passed after the acquisition. From the standpoint of controlling the risks, it is crucial to safeguard the Seller's interests in the manner described above.

Q5:
Given that Digion's headquarters are in London, it would be advantageous for them if the English court has exclusive jurisdiction. This may be as a result of familiarity with the relevant laws and reliance on a legal firm's or in-house counsel's reliable knowledge. Additionally, it would increase process convenience and offer legal clarity.

 

[TheDragon204]

1) Immersive seems to be popular with game develops despite it being a start-up company. This could broaden Digion's visibility within the sector. Additionally, Immersive has valuable IP that is of interest to a company such as Digion.

The two co-founders of Immersive, Leon Alexander and Maria May of significant value to the deal due to their extensive experience in the field.


2) Attempt to bind Tristan Taylor to a clause similar to clause 7.3 which restricts his ability to poach or entice employees.

3) Outlines the security measures in benefit of Digion that need to be followed in order for the acquisition to go forward.

4) The seller could possibly contractually agree to remedy any potential issues that occur prior to the acquisition and subsequently forego any arising issues that occur after the acquisition specifically on matters that have been remedied by Immersive.

It is important to limit the sellers liabilities to minimise excess fees.

5) Digion's headquarters are in London making the courts of England the most appropriate jurisdiction for the company.

 

[ckw_1222]

Q1: Digion is aiming for market expansion.

 

[Tinakho99]

In Clause 7, note the phrase, 'The Seller’s liability under the warranties and indemnities shall be subject to limitations.' Suppose you were the lawyers acting for the Seller, what could you do to limit the Seller's liabilities? Why is this important?

You could limit the Seller's liabilities by including a time frame, for instance, the Seller won't be liable for incidents which occurred 1 year ago, etc. You could also limit liabilities by providing a list of areas in which the Seller's liability is excluded. Limiting the Seller's liabilities is important because it narrows the scope of the Seller's potential liabilities. The more the Seller is liable for, the more money it may have to pay.

 

[ADKM]

A1) A company acquires another company for synergy creation and grow its business through economies of scale. Through this acquisition, Digion will have the opportunity to tap into a new market within the technology domain (I.e the gaming sector) and significantly increase its revenue, thereby giving Digion an added leverage to manage its operating costs. Digion can do this by using the extensive experience of Immersive’s co-founders Leon Alexander and Maria May who bring along with them extensive experience in game server hosting.

A2) Elena must get Tristan to sign a non-solicitation clause which prevents him from individually poaching/approaching employees of Digion. The clause must be drafted in a way which does not sound aggressive that it can provoke Tristan to take steps which can jeopardise the execution of the deal considering he holds an influential post in Immersive as vice president.

A3) This clause is mainly concerned with ensuring market integrity and the deal is executed in all fairness to both the buyer and seller. As a buyer, the clause categorically sets out the rights available to the buyer such as access to information of the seller’s business to conduct due diligence to ensure there are no ongoing complications that could potentially affect the deal. As for the seller, ensuring its stakeholders have given the green light to get the deal running, after considering all the necessary background checks and arranging all documents/information to be presented to the buyer. In terms of market integrity, ensuring the deal is well within the threshold to promote healthy competition in the market and there is no third party interference/any vested interest by anyone involved that can materially impact the terms & conditions of the proposed acquisition.

A4) A warranty in a sale and purchase agreement is basically the seller being transparent to the buyer through what is commonly called a ‘disclosure letter’. Therefore, acting for the seller, it is important to advice the seller to be completely transparent with the buyer about all commercial dealings and/or any confidential information which if not disclosed can compromise the seller’s position and can entitle the buyer to claim compensation from the seller for the potential losses. Therefore, by being completely transparent to the buyer, the seller can eliminate any situation of providing compensation as all the information would have already been presented to the buyer leaving the buyer with the decision to move ahead/forfeit the proposed acquisition.

A5) As English law is the universally accepted set of rules to govern commercial transactions which precedes any regional laws, it is practical for both parties to agree to the courts of England having exclusive jurisdiction over this deal as the courts will adjudicate the matter (if there is a dispute) based on English law without having to worry about geographical limitations .

 

[lawstudent9]

1. Expand into foreign markets (particularly Germany), benefitfrom economies of scale, gain access to specialised expertise and talents and increase market share

 

[ubklu]

Response 1

Immersive is popular among game developers. Buying Immersive will allow Digion to integrate Immersive’s services to its own platform and attract the developers that use Immersive onto Digion’s platform. The transaction would be a step to fulfilling Digion’s business objectives of creating a platform that makes online game development efficient, effective, and accessible for developers, through the incorporation of Immersive’s popular services.

Response 2

I would advise Elena to get further information from HR about what type of contact Tristan Tylor has been making with Digion’s employees. We will be able to provide Elena with better advice once we know the nature of Tristan’s conversations with Digion’s employees.

Regarding the poaching. I would advise Elena to include a non-compete clause in the purchase agreement to prevent Tristan from poaching both Digion and Immersive’s employees.

Response 3

The purpose of Clause 5 is to set out Digion’s intention to acquire Immersive provided that certain conditions are met including due diligence on Immersive.

Response 4

Agree to a period for due diligence to be carried out to avoid a too in-depth investigation by the buyer in the due diligence process

Include a claim period in the agreement to limit claims e.g. the warranty or indemnity will be valid for the 5 years after completion of the transaction. This way the seller will not be liable for any indemnities or warranties that arise after the specified period following completion.

Response 5

Digion is a multi-jurisdictional company therefore, it will be necessary for them to identify which jurisdiction will handle disputes that arise in this transaction. Moreover, Immersive a Frankfurt-based company is in a different jurisdiction to Digiona and is under the jurisdiction of EU courts. By setting out that the 'the courts of England have exclusive jurisdiction to settle any dispute’, Digion can ensure that disputes are handled under one jurisdiction.

 

[Ghana M.]

Why do you think Digion wants to buy Immersive?​

• Own monopolistic rights (i.e. could further license it) in terms of the patented cloud technology.​
• Expand their growth in the online gaming industry and tap into the foreign emerging markets, i.e. Germany and Europe​
• Reduce costs through its homegrown game development​
• Combining both companies' talent may result in more innovative ideas, which could draw in high-quality work in the future ​

How would you advise Elena handle the situation with Tristan?​

• Maintaining a good rapport should be the priority here so Elena can remind Tristan about his implied duty to the agreement and HR policies (if any)​
• Negotiate a non-compete clause in the service agreement​
• If Tristan resigns or Elena does not keep him on board, execute an NDA and see if there's a golden parachute clause in the service agreement.​

What is the purpose of Clause 5 in Document 3?

Conditions are the backbone of the contract, and if not satisfied, there's no binding contract, so the sale won't be able to go ahead.

In Clause 7, note the phrase, 'The Seller's liability under the warranties and indemnities shall be subject to limitations.' Suppose you were the lawyers acting for the Seller, what could you do to limit the Seller's liabilities? Why is this important?

Negotiate with the buyer's lawyers and insert the following clauses to limit Seller's liability;
​

• De Minimis Clause (to have a minimum threshold for a claim)​
• No double recovery clause​
• Time limit clause (sets a time limit on bringing certain actions)​
• Entire agreement Clause​
• Third-Party Recovery clause​

(Could also ask to include a Buyer's undertaking to return/destroy confidential information if the acquisition does not go through)

Why could it be important to Digion that 'the courts of England have exclusive jurisdiction to settle any dispute'?
​

• Always essential to specify the jurisdiction for dispute resolution if the acquisition has an international dimension.​
• The SPA will be governed by English law and will allow a high degree of certainty.​

 

[Sitong]

To purchase IP rights; Since Immersive is situated in Frankfurt and Digion is well-known to be present in the UK, the US, and Canada, it makes sense to grow into the European market; To hire Leon Alexander and Maria May.

 

[TheBarorNot10]

Why do you think Digion wants to buy Immersive?
Three reasons:

Consolidation/Vertical Integration – Digion Ltd is a multi-national tech company which aims to make online game development more efficient and effective for developers using patent cloud tech to enable developers to make games that support multi-player use. Immersive Ltd is a tech start-up company which produces cloud tech that supports multi-player use, and is essentially the supplier for Digion Ltd. Thus, consolidation /vertical integration is one reason – Digion (manufacturer) has acquired a business that is part of its supply chain – Immersive is the distributor.

Growth- Immersive Ltd is a Frankfurt based tech start up. Digion Ltd is a multi-national tech company, which has expanded in Canada, US and UK but not Europe. Acquisition is a great opportunity for company to expand to new market.

Immersive has unique strengths – two co-founders Leon and Maria bring years of experience in gamer server hosting and Immersive has a popular consumer base in the game development market.




How would you advise Elena handle the situation with Tristan?

If employees are not happy to be contacted by Tristan – get HR to draft an email to Tristan requesting him to refrain from emailing.
It is also unclear as to what Tristan is contacting Digion’s employees about – could be innocent and he is trying to find out what culture is like – given Digion will be taking over Immersive Ltd.
If Elena would like to start afresh in terms of Immersive’s management team on acquisition – good idea to review employee contracts of senior management during due diligence stage to ascertain whether Tristan can be made redundant following acquisition.
Not to worry about Tristan trying to poach some of Digion’s employees. Clause 7.3 prohibits this explicitly.
What is the purpose of Clause 5 in Document 3?
To offer the buyer protection during the acquisition, so that in the event the deal falls through because of one or more of these conditions not being met, the buyer will not face legal action from the sellers.



Why could it be important to Digion that 'the courts of England have exclusive jurisdiction to settle any dispute'?



In the event of a dispute occurring, the first thing lawyers will need to consider as part of the Pre-action Protocol is jurisdiction. Given, Digion is headquartered in the UK, but Immersive Ltd is not, it would be wise to state which courts have jurisdiction, as Immersive Ltd could say English law does not apply to them as a German domiciled company.

 

[joeykmb]

1. Why do you think Digion wants to buy Immersive?

Digion is a company which provides distributed simulation software for video games and corporate use. Hence, Digion may want to acquire Immersive as they want to utilise Immersive’s valuable Intellectual Property to make their production process more efficient or diversify their product offering (online game softwares) to attract more customers. Further, Digion may want to rely on Immersive’s popularity in the market to instill more confidence amongst game developers to use their software.

2. How would you advise Elena handle the situation with Tristan?

I would advise Elena to request Immersive to sign a ‘Non-Solicit Clause’, which is a contractual promise by the buyer (Immersive) to not approach and attempt to poach Dijion’s employees post-acquisition for a period of time.

3. What is the purpose of Clause 5 in Document 3?

• Clause 5 serves as a condition precedent. This means that the terms under this clause must be fulfilled or abided by before full performance of the contract becomes due.
• Clause 5 also sets out the scope of the task/role of each party leading up to the completion of the deal – this makes the process more efficient and transparent.

4. In Clause 7, note the phrase, 'The Seller’s liability under the warranties and indemnities shall be subject to limitations.' Suppose you were the lawyers acting for the Seller, what could you do to limit the Seller's liabilities? Why is this important?

• As the lawyers representing the Seller, I would advise the seller to negotiate caps on liability. There are several types of liability caps such as the basket of claims, de minimis clause and the de maximus cap. The “basket clause” provides that Immersive only has to pay out the indemnity owed in its aggregate amount, once Digion’s total loss exceeds an agreed threshold. On the other hand, the de minimis clause restricts Digion’s ability to bring a claim unless the claim is worth at least a minimum specified amount. The De maximus cap places a limit on the maximum amount that can be claimed for particular breaches of contract.
• Limiting the Seller’s liabilities is important because without them, the Buyer may exploit any warranties provided by the Seller to allow situations which would lead to the breaching of the warranty to occur, thus being able to continuously claim damages.
• I would subsequently recommend the type of liability clause depending on the Seller’s objective (e.g. not wanting to spend time administering relatively small claims – basket or de minimis or wanting to limit their potential liability – de maximus cap)

5. Why could it be important to Digion that 'the courts of England have exclusive jurisdiction to settle any dispute'?

Although Digion is a multinational company, it is headquartered in London. On the other hand, Immersive is based in Frankfurt. Therefore, it is important to Digion that the English courts have exclusive jurisdiction to settle any dispute to prevent Immersive for requesting that the dispute be settled in Frankfurt courts - where the different law jurisdiction may favour Immersive instead.