M&A practice relies heavily on the use of forms and precedent. Absent an eidetic memory, even the most accomplished M&A attorneys need precedent consents, agreements, certificates and other documents to consummate a transaction, and the quality of the forms used directly impacts the allocation of rights and obligations of the parties and, ultimately, the success or failure of the deal. In this light, The M&A Lawyer Blog has carefully curated a small set of high quality forms and precedent created by top law firm attorneys for use in M&A transactions. They are listed below and available for purchase.
Each document in our M&A forms database is in Microsoft Word format and reflects what is, in the opinion of the publisher of The M&A Lawyer Blog, a reasonable starting point for drafting and negotiation. That is not to say that each document is ideally suited to every circumstance or to your specific transaction. On the contrary, each document will almost certainly need to be customized for your deal, and you are strongly encouraged to engage a qualified M&A attorney in connection with doing so.
Form of M&A Closing Checklist – Private Stock Purchase
Detailed M&A closing checklist of more than 60 actions that need to be taken and documents that must be delivered for a complete stock purchase transaction, from signing to post-closing. Includes all transaction agreements, resolutions, closing deliverables, CFIUS and HSR filings, escrow, gap period between signing and closing and third party consents. 8 pages. In Microsoft Word format.
Form of M&A Closing Checklist – Private Asset Purchase
Detailed M&A closing checklist of more than 50 actions that need to be taken and documents that must be delivered for a complete asset purchase transaction, from signing to post-closing. Includes all transaction agreements, resolutions and closing deliverables. No gap period between signing and closing. 6 pages. In Microsoft Word format.
Form of Escrow Agreement – Private M&A Transaction – Initial Escrow Agent Draft
An example Escrow Agreement to govern the deposit, maintenance and distribution of cash and other assets to be used for post-closing indemnification. Draft prepared by bulge bracket financial institution. Reflects agent-friendly provisions. Contemplates seller stockholder representative. 11 pages. In Microsoft Word format.
Form of M&A Transition Services Agreement
A customary agreement effective at closing of an M&A transaction pursuant to which the seller agrees to provide certain ongoing services to the buyer and target company for a period of time to assist with the transition. 7 pages. In Microsoft Word format.
Form of Bill of Sale – Attachment to Asset Purchase Agreement
Instrument through which title to tangible personal property and certain other assets may be transferred at closing of an asset sale. Includes a further assurances covenant and grant of power of attorney to buyer. 2 pages. In Microsoft Word format.
Form of Officer’s Closing Certificate
A model officer’s certificate delivered at closing and certifying the buyer’s compliance with representations, warranties and covenants required to have been complied with prior to closing. Governed by Delaware law. 1 page. In Microsoft Word format.
Form of Assignment & Assumption Agreement – LLC Interests
A short, simple instrument effecting conveyance of limited liability company ownership interests. Contains very limited representations and warranties. 3 pages. In Microsoft Word format.
Consents & Resolutions
Form of Written Consent of Board Appointing Officers & Amending Bylaws
Adopts amended and restated bylaws, establishes corporate offices, appoints officers and grants banking authority to specified officers. For a Delaware corporation. In Microsoft Word format.
Form of Written Consent of Sole Member of LLC Approving Merger
A simple consent needed for the sole member of a limited liability company to approve an M&A transaction. For a Delaware limited liability company. In Microsoft Word format.
Form of Written Consent of Sole Stockholder – Approval of Purchase Agreement – Sale of Assets
Parent company approval of an asset sale effected via a two-step transaction involving an initial transfer of assets to a holding company and the subsequent sale of the holding company LLC interests to a third party buyer. For a Delaware corporation. In Microsoft Word format.
Form of Written Consent of the Board of Directors – Approval of Asset Acquisition Transaction
Provides for approval by a corporation’s Board of an asset purchase and the related transaction documents, including a transition services agreement, waiver agreement and guaranty agreement. For a California corporation. In Microsoft Word format.
Principal Transaction Agreements
Form of Asset Purchase Agreement – Pro-Buyer First Draft
Draft APA for a private sale of a chemical business. Includes inventory purchase price adjustment, non-compete, dollar-one basket, right of setoff, specific environmental indemnity and seller parent indemnity. Governed by Delaware law. 65 pages. In Microsoft Word format.
Form of Stock Purchase Agreement – Pro-Seller Auction Draft
A pro-seller form of stock purchase agreement for a private M&A transaction. Includes a purchase price adjustment, gap period between signing and closing (during which closing conditions will be satisfied), a Section 338(h)(10) election provision and limits on indemnification. Governed by New York law. 41 pages. In Microsoft Word format.
Form of Merger Agreement – Public Company Acquisition of Private Company with Large Stockholder Base
A fully-negotiated model Merger Agreement appropriate for a public company’s acquisition of a private company with a broad stockholder base. The transaction involved (1) a combination of cash and stock consideration, (2) an earnout, (3) public M&A deal protections and share exchange mechanics, (4) a stockholder representative, (5) post-closing indemnification (with basket and cap) and escrow, (6) a working capital adjustment, (7) a 19.9% cap on purchaser share issuance to comply with Nasdaq listing rule 5635, (8) a target stockholder lockup, (9) a California Section 3(a)(10) fairness hearing, (10) purchaser board representation and (11) a special foreign tax indemnity. 113 pages. In Microsoft Word format.
Form of Bill of Sale Conveying Supplies, Inventory, Fixed Assets, Leases, Other Contracts and Permits – Buyer First Draft
Complex bill of sale conveying multiple asset types. Includes excluded assets, assumed liabilities, reps and warranties, post-closing covenants and indemnity. Can serve as a stand-alone instrument without an asset purchase agreement. 6 pages. In Microsoft Word format.