Most private M&A transactions are structured as acquisitions of stock, rather than mergers or asset purchases. The principal agreement governing such a transaction is typically a Stock Purchase Agreement (SPA), sometimes styled a Securities Purchase Agreement or simply a Purchase Agreement. At their most basic level, these agreements provide for the sale of shares in a […]
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The M&A Lawyer Blog Publishes Forms Database
Mergers & Acquisitions practice relies heavily on the use of forms and precedent. They are the very foundation of what we do. Absent an eidetic memory, even the most accomplished M&A attorneys need precedent consents, agreements, certificates, checklists, filings and other documents to consummate a transaction, and the quality of the forms used directly impacts […]
M&A Disclosure – Annotated Form 8-K
Public companies that participate in M&A transactions are subject to a myriad of potential disclosure obligations throughout the transaction process. These may arise under applicable stock exchange listing rules, federal securities laws, state fiduciary duty and proxy requirements as well as antitrust law and other regulatory regimes. The federal securities laws alone may require various disclosures […]
Material Adverse Effect Clauses
Things rarely go according to plan. Earnings are missed. Commercial relationships end. Regulatory approvals don’t materialize. Lawsuits get filed. And disasters happen. Such are the vicissitudes of business. But what happens when they transpire during the gap period between signing and closing an M&A transaction? Most sellers would argue that little if anything should happen—the deal should still close at the previously […]
Intro to M&A Representations and Warranties
The primary transaction agreement in every M&A deal contains representations and warranties, colloquially referred to as “reps and warranties” or simply “reps,” from each party to the other. These are statements of past, present and sometimes future fact relating to the status, business, assets, liabilities, properties, condition, operating results, operations and prospects of the party making […]
How to take control of a Board through written consents
On August 19, 2015, the Delaware Court of Chancery issued an opinion in Kerbawy v. McDonnell that addressed how holders of a majority of a company’s shares should take control of a board of directors by executing written consents. The case involved interpretation of Section 228 of the Delaware General Corporation Law, which provides that, unless otherwise set forth in […]
Anatomy of an Asset Purchase Agreement
Like the classic game Operation,® asset purchase transactions require parties to take great care in extracting just what they want. However, successful asset sales require quite a bit more than a pair of tweezers and steady hands. Among other things, they require a well-crafted Asset Purchase Agreement (APA). These agreements, at their most basic level, provide for the sale […]
Dole CEO and GC Fraud Liability for Otherwise Proper Going-Private Deal
On August 28, 2015, the Delaware Court of Chancery found the controlling shareholder-CEO and General Counsel of Dole Food Co. Inc. liable to investors for $148 million for fraudulently driving down the company’s share price in anticipation of a going-private transaction. What’s particularly noteworthy here is that the controlling shareholder appears to have structured the […]
What does an M&A lawyer do?
An M&A lawyer runs the deal. She is the hub in the hub-and-spoke system of deal parties and their advisers. The M&A lawyer serves as the primary point of contact for the rest of the deal team and has principal responsibility for shepherding the transaction to closing. She may be an in-house attorney but is more often an M&A specialist practicing with an outside […]
FTC Issues Guidance on Antitrust Merger Review
As mentioned in a prior post, if the transaction value for an M&A deal equals or exceeds $92 million (as of the date of this post; the threshold is adjusted annually), an HSR filing may be required with the Premerger Notification Office of the Federal Trade Commission, and the parties must wait 30 days to […]