Special Institute on

Oil & Gas Agreements: Purchase and Sale Agreements

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Thursday Morning

Registration

  1. ALEX RITCHIE

    Executive Director Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. Rebecca W. Watson

    President, Rocky Mountain Mineral Law Foundation Welborn Sullivan Meck & Tooley, P.C., Denver, CO
  3. SAM G. NIEBRUGGE

    Partner Davis Graham & Stubbs LLP, Denver, CO
  4. AMY E. SENESHEN

    Managing Partner Welborn Sullivan Meck & Tooley, P.C., Denver, CO

Introduction and Opening Remarks

  1. SHAUN FINNIE

    Senior Managing Director Evercore, Houston, TX
  2. SEAN WHEELER

    Partner Kirkland & Ellis LLP, Houston, TX

Recent Developments in the U.S. Oil and Gas M&A Market

  • Overview of recent developments in the U.S. oil and gas M&A market

  1. Justin T. Stolte

    Partner Gibson, Dunn & Crutcher, LLP , Houston, TX

Structuring the Transaction: Equity vs. Asset Considerations

  • Fundamental considerations between choosing to purchase assets vs. purchasing the stock or equity in the company
  • Analysis of continuing liability and related due diligence considerations
  • Tax analysis of structure
  • Alternative deal structures

Hosted Refreshment Break

  1. John T. Bradford

    Of Counsel Liskow & Lewis, Houston, TX
  2. REGAN CANFILL

    Associate Liskow & Lewis, New Orleans, LA

Federal and State Tax Considerations for Oil and Gas Property Purchase and Sale Agreements

  • Distinguishing a property sale transaction from a leasing transaction
  • Allocation of purchase price – uses of allocated values, methods used to determine allocated values, strategies used in negotiating allocated values, and executing the IRS Form 8594
  • Tax consequences for the property sale transaction to seller and buyer
  • Tax representations and warranties
  • Provisions for alternative tax efficient transactions such as like-kind exchanges, acreage trades, and “cash and carry” joint development agreements
  • Dealing with ad valorem tax apportionments

Lunch - On Your Own

Thursday Afternoon

  1. PETER HAYS

    Partner King & Spalding, Houston, TX

LOIs and MOUs in Oil and Gas M&A (from Texaco v. Pennzoil through ETP v. Enterprise to the Present)

  • Considerations when drafting a letter of intent or non-binding term sheet
  • Survey of major oil and gas case law, from Texaco v. Pennzoil to ETP v. Enterprise
  • Examples of LOIs from cases presented

  1. MARK JONES

    Partner Baker Hostetler, Houston, TX
  2. ALLISON JONES

    Associate Baker Hostetler, Houston, TX
  3. ASHLEY WHITTINGTON

    Associate Baker Hostetler, Houston, TX

The Due Diligence Process

  • Due diligence checklist items
  • Public and private record review
  • Asset review (excluding environmental assessments)
  • Working with hired professionals
  • What are value priorities and how are they preserved?

Hosted Refreshment Break

  1. CHRISTOPHER S.C. HEASLEY

    Partner Kirkland & Ellis LLP, Houston, TX
  2. ROY MITCHELL

    Assistant General Counsel Maverick Natural Resources, Houston, TX

Title Defect Procedure

  • Defining the quality of title the buyer expects to receive
  • Structure of a typical title defect procedure
  • How to define “permitted encumbrances” and effect on special warranty
  • Special warranty considerations in assignments: what survives?
  • Procedures for handling consents to assign and preferential rights to purchase
  • Pre and post-closing cure rights and considerations of curing assets the seller no longer owns

  1. TAMI J. HINES

    Associate Hall Estill, Oklahoma City, OK
  2. ASHLEY T.K. PHILLIPS

    Partner Thompson & Knight LLP, Austin, TX

Environmental Due Diligence — Transactional and Litigation Considerations

  • Common environmental considerations, including differences between buyer’s concerns and seller’s concerns
  • Drafting considerations for environmental provisions in the Purchase and Sale Agreement
  • Litigation risks

Hosted Reception for Speakers Registrants, & Guests

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Friday Morning

  1. KRAIG GRAHMANN

    Partner Haynes and Boone, LLP, Houston, TX

Covenants Between Signing and Closing and Closing Conditions

  • Covenants regarding the ongoing ownership and operation of the assets between signing and closing
  • Establishing remedies between the parties in the event of a breach and considerations of deposit, break fee, and specific performance
  • Discussion of standard and non-standard closing conditions
  • How to protect against, or advocate for, either party walking from the deal
  • Governmental approvals including HSR and CFIUS
  • Post-closing conditions (e.g. BLM approval of assignments)
  • Consents to assignment, preference rights, and other conditions to the deal

  1. MARK BUSSEY

    Partner Davis Graham & Stubbs LLP, Denver, CO

Getting What You Paid For: Representations and Warranties

  • Standard equity deal representations and warranties
  • Standard asset-based representations and warranties
  • Non-standard representations and warranties
  • Interplay with closing conditions, the “bring down”, and the MAE qualifier
  • Availability and use of representation and warranty insurance
  • Tie-in with title defect process, environmental defect process, and covenants
  • Survival of representations and warranties (including issues in Texas)

Hosted Refreshment Break

  1. ROBIN FREDRICKSON

    Partner Latham & Watkins LLP, Houston, TX
  2. Stephen C. Szalkowski

    Partner Latham & Watkins, Houston, TX

Allocating Liabilities and Indemnities

  • Allocating assumed and retained liabilities
  • Indemnity procedures and pitfalls
  • Issues to consider such as anti-sandbagging, materiality scope, thresholds, deductibles, and caps
  • Improving the quality of the indemnity, including utilization of a hold back, rep and warranty insurance or parent company guaranties

Lunch - On Your Own

Friday Afternoon

  1. RYAN SEARS

    Partner Gray Reed, Dallas, TX
  2. LYDIA WEBB

    Associate Gray Reed, Dallas, TX

Buying or Selling a Midstream Asset

  • How to define the midstream asset
  • Special diligence considerations including reviewing long-term purchase and sale contracts, dedication agreements, and volume commitments
  • Unique representations and warranties
  • Valuation issues and interplay with defect procedures
  • Governmental approvals on state (e.g., PUC) and federal (e.g., FERC)

  1. JEFFREY S. MUÑOZ

    Partner Latham & Watkins LLP, Houston, TX
  2. JAMES H. COLE

    Partner Latham & Watkins, Houston, TX

Examining a Typical Exchange Agreement: Motivations and Key Considerations

  • Motivations for entering into an exchange
  • Exchange structures and considerations
  • Key provisions of an exchange agreement

Hosted Refreshment Break

  1. PHILLINA LAI

    General Counsel Upstream, Midstream, and Gas Supply, Houston, TX
  2. David Sweeney

    Partner Akin Gump Strauss Hauer & Feld LLP, Houston, TX

Tough Deal Issues

  1. WILLIAM D. SLEASE

    Chief Disciplinary Counsel New Mexico Supreme Court Disciplinary Board, Albuquerque, NM

Ethical Considerations in Negotiating Complex Contracts

  • Negotiating with opposing counsel
  • Negotiating with parties not represented by counsel
  • Representing both buyer and seller (e.g., What if you represented the buyer 5 years ago and now someone new wants you to represent them in buying from your former client?)
  • Fiduciary duties among parties to a transaction
  • Attorney-client privilege and confidentiality under ABA Model Rule 1.6
  • Applicable ABA Model Rules of Professional Conduct that arise from negotiating complex contracts will be addressed

Course Adjournment