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 […]
Tag Archives: M&A Process
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 […]
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 […]
I’m buying a company. How do I know exactly what I’m getting?
Unfortunately, an acquisition is like a box of chocolates: you never know what you’re gonna get. Even if it’s an asset purchase, rather than a merger or stock sale, when you’re buying a company, there’s risk that you’ll be assuming unknown liabilities. For example, unbeknownst to you, a seller may be insolvent, and the transfer of assets to you […]
What you need to know about M&A letters of intent
Preliminary outlines of proposed M&A deals—whether called letters of intent (LOIs), term sheets or memoranda of understanding (MOUs)—allow parties to sketch out fundamental terms quickly before expending substantial resources on negotiating definitive agreements, finalizing due diligence, pursuing third-party approvals and other matters. M&A letters of intent appear simple (they aren’t) and as something that can be advanced without lawyers (they shouldn’t […]
What you need to know about M&A confidentiality agreements
Most M&A transactions are material to the parties involved, and public disclosure that a deal is in the offing can have profound effects on a company’s operations, ranging from employee attrition to loss of confidence by commercial counterparties. Of course, for public companies, exploration of strategic alternatives may constitute material nonpublic information implicating Regulation FD (which […]
What are the main features of public company M&A?
A few years ago, I gave a training webinar on public company M&A with my close friend Roger W. Bivans, a Partner with Baker & McKenzie in Dallas. This offers a fairly comprehensive treatment of the subject. However, it hasn’t been updated to reflect any changes in the law since its original publication date so be careful […]
Fiduciary Duties: Minority Shareholder Rights
Officers, directors, managers, controlling stockholders and other control persons of corporations and other entities frequently have responsibilities to minority owners set forth in their companies’ organizational documents (charters, bylaws, operating agreements, etc.). For example, a control person may be required to give investors access to a company’s books and records. In addition, state law imposes […]