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 law firm. In many respects, an M&A lawyer is a legal jack of all trades. Core competencies include:
- strategic thinking,
- complex drafting,
- attention to detail and
- critically, the ability to work quickly.
Substantive legal knowledge is focused on state corporate, contract and fiduciary duties law as well as federal securities law. An M&A lawyer must also have at least a working knowledge of corporate finance, secured lending, tax, environmental law, employment and labor law, executive compensation and benefits, real estate, antitrust, intellectual property, anti-corruption, commercial law and more.
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An M&A lawyer is involved in virtually every aspect of a transaction, from initial conception to consummation, though she rarely participates in setting purchase price and post-closing integration. Her specific functions include:
- preparing the target company for sale by, for example, ensuring that corporate formalities have been duly adhered to, third party vendor and supplier relationships are appropriately formalized and identifying, and if possible taking steps to mitigate, areas of potential risk,
- drafting and negotiating a financial adviser engagement letter, a letter of intent and a confidentiality agreement,
- working with tax and financial advisers to structure the transaction,
- conducting or facilitating legal due diligence (i.e., the review of contracts, permits, organizational documents and other materials relating to the target company, the subject assets or, occasionally, the buyer, to develop an understanding of the scope, value and risks of the transaction),
- preparing a due diligence memorandum or other summary of due diligence findings for the buyer,
- creating a comprehensive implementation checklist identifying all actions that must be taken and documents to be delivered in connection with the transaction,
- drafting and negotiating the principal transaction agreement, including crafting appropriate representations, warranties, covenants and disclosure schedules in light of issues identified during due diligence and conditions to closing,
- advising buyer and target boards of directors and management on fiduciary duties and minority shareholder rights, such as dissenters’ rights, including identifying conflicts of interest or other factors that may result in higher standards of scrutiny,
- reviewing and commenting on the financial adviser’s fairness opinion and board presentation in light of the board’s fiduciary duties, any disclosure obligations and the financial adviser’s engagement letter,
- advising as to disclosure obligations under applicable federal securities laws, securities exchange listing standards and fiduciary duties as well as drafting any Form 13Ds, press releases, proxy or information statements, Form 8-Ks, tender offer documentation and registration statements,
- providing tactical advice during negotiations,
- managing specialist attorneys and integrating their comments, as well as comments from client personnel, into transaction agreements,
- drafting and negotiating ancillary documents, including any exclusivity agreement, legal opinion, bill of sale, assignment and assumption agreement, escrow agreement or transition services agreement,
- coordinating with proxy solicitors,
- preparing, or working with antitrust counsel to prepare, an HSR filing,
- advising on and implementing defensive measures to deter or thwart hostile takeover attempts or activist shareholder destabilization campaigns, including advising on proxy contests and preparing shareholder rights plans (poison pills), and
- identifying requirements for third party consents and coordinating with client personnel to obtain them.
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