Contents

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M&A Basics

  1. What is M&A?
  2. Who are the key M&A deal participants, and what do they do?
  3. What does an M&A lawyer do?
  4. What is the progression of a typical (private) M&A transaction?
  5. What are the different ways to structure an M&A transaction?
  6. What documents do I need to buy or sell a business?
  7. What do I need to know about letters of intent in M&A deals?
  8. I’m acquiring a company. How do I make sure I know exactly what I’m buying?
  9. Anatomy of a Stock Purchase Agreement
  10. Anatomy of an Asset Purchase Agreement
  11. Intro to M&A Representations and Warranties
  12. Material Adverse Effect Clauses

Private M&A

  1. What is the progression of a typical (private) M&A transaction?
  2. Should I propose an earnout to bridge the valuation gap?
  3. Will you elaborate on the use of earnouts in M&A?
  4. Anatomy of a Stock Purchase Agreement
  5. Anatomy of an Asset Purchase Agreement
  6. Intro to M&A Representations and Warranties
  7. Material Adverse Effect Clauses

Public M&A

  1. What are the main features of public company M&A?
  2. What can you tell me about doing due diligence on public targets? (See slides 6 through 9)
  3. What are the considerations in structuring a public M&A deal? (See slides 18 through 23)
  4. What purchase price issues arise in public M&A deals? (See slides 24 through 26)
  5. Are there any post-closing covenants in public M&A deals? (See slide 27)
  6. Why do public deals have no-shops, break-up fees and other deal protections, and how do they work? (See slides 28 through 35)
  7. Dole CEO and GC Fraud Liability for Otherwise Proper Going-Private Deal
  8. Material Adverse Effect Clauses
  9. M&A Disclosure: The Ultimate Annotated Form 8-K

Fiduciary Duties

  1. What responsibilities do I have to minority investors? What are fiduciary duties?
  2. Do I owe minority investors any special duties when I sell my company? What are Revlon duties?
  3. How are target company director fiduciary duties exercised in public M&A deals? (See slides 10 through 17)
  4. Dole CEO and GC Fraud Liability for Otherwise Proper Going-Private Deal

M&A Confidentiality Agreements

  1. What do I need to know about M&A confidentiality agreements?
  2. Does it matter if they’re mutual or one-way?
  3. How should I define “Confidential Information” or “Evaluation Material”?
  4. What should a recipient be required to do with Confidential Information?
  5. Are there typical exceptions to restrictions on disclosure?
  6. What happens to Confidential Information after termination of discussions?
  7. How do I enforce my rights?
  8. How long should restrictions last?
  9. How do I stop the other side from stealing my employees and clients?
  10. What is a standstill provision?

M&A Transaction Documents

  1. What documents do I need to buy or sell a business?
  2. Merger Agreements
  3. Stock Purchase Agreements (brief) and Anatomy of a Stock Purchase Agreement (long)
  4. Asset Purchase Agreements (brief) and Anatomy of an Asset Purchase Agreement (long)
  5. Intro to M&A Representations and Warranties
  6. Confidentiality Agreements
  7. Letters of Intent (brief) and What you need to know about M&A letters of intent (long)
  8. Exclusivity Agreements
  9. Disclosure Schedules
  10. HSR Filings
  11. Third Party Consents
  12. Legal Opinions
  13. Stock Certificates
  14. Bills of Sale
  15. Assignment and Assumption Agreements
  16. Escrow Agreements
  17. Transition Services Agreements

Buyer Risk Mitigation

  1. I’m acquiring a company. How do I make sure I know exactly what I’m buying?
  2. Buyer Due Diligence
  3. Seller Representations and Warranties (short) and Intro to M&A Representations and Warranties (long)
  4. Pre-Closing Covenants
  5. Seller Certifications
  6. Legal Opinions
  7. Closing Conditions and Termination Rights
  8. Indemnification Rights and Breach of Contract Claims
  9. Post-Closing Covenants

Drafting

  1. Material Adverse Effect Clauses

Contests for Control

  1. How to take control of a Board through written consents

Antitrust

  1. August 2015 FTC Guidance on Antitrust Merger Review

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