An M&A lawyer is a business attorney who specializes in mergers and acquisitions. These transactions involve numerous complexities, requiring contracts, intellectual property, valuation, representations and warranties, and antitrust law expertise.
They also prepare for and conduct legal due diligence to determine if the deal makes sense. Lawyers can be billed by the hour or on a contingency basis.
Identifying the client’s Goals
The first step in M&A law is to identify the client’sclient’s goals. For example, a company might merge with another business to access more territory. An attorney will ensure the transaction is a beneficial investment and address legal implications.
This involves conducting due diligence to assess the other business’s financial performance, past lawsuits, and contracts. An M&A lawyer Denver also prepares documents for a transaction, including disclosure statements and merger agreements. They may review various materials, including tax records, intellectual property, and corporate governance.
Lawyers must be proficient in contract law to draft and negotiate agreements specific to acquisitions, joint ventures, shareholder responsibilities, and merger control. They should also understand antitrust law, valuation issues, representations and warranties, and general regulatory compliance.
Conducting Due Diligence
Whether buying a home, choosing a college, or making any other high-stakes decision, you want to know what you’re getting into before spending your hard-earned cash and valuable time. This is why due diligence is so necessary—whether it’s a property inspection, a background check, or an evaluation of the financial performance of a business before a merger and acquisition.
This step involves reviewing various documents and operations to assess the risks associated with the deal, including past law compliance issues, contracts, financial performance, and intellectual property. It also examines the company’s tax profile, mainly focusing on income and non-income taxes, sales/use, employment/payroll, and property taxes. It also delves into the organization from a people’s perspective, shareholder agreements, and board resolutions.
The M&A process requires many legal documents, including the merger agreement, shareholder agreements, employment contracts, and disclosure schedules. M&A lawyers thoroughly prepare these documents to reflect the transaction terms and account for potential risks accurately.
A vital part of this is drafting the letter of intent (LOI). An LOI is a short, nonbinding document that sets out the general framework for the deal. It can help reduce the risk that parties needlessly expend time and resources on a full-scale due diligence, negotiation, and definitive document drafting process only to discover no deal. By preparing an LOI early, attorneys can ensure all relevant issues are addressed.
Negotiating the Deal
A lawyer will draft and negotiate contracts relating to the deal as part of the process. They will also guide financing arrangements and form special-purpose entities to complete the transaction.
Lawyers will also advise their clients on governance issues and corporate compliance. They will thoroughly understand securities regulations, including registration requirements, disclosure obligations, and insider trading.
During negotiations, M&A lawyers will help clients understand the other party’s motivations, values, hopes, and fears. They will also prepare fall-back positions that they would be comfortable taking during a negotiation breakdown. The goal is to avoid being seen as overly aggressive or desperate. The best M&A lawyers will be able to demonstrate detachment during the negotiation process.
Closing the Deal
To close the deal, an M&A lawyer drafts a purchase agreement that includes representations and closing conditions. They also prepare a due diligence checklist and questionnaire. They can also draft ancillary documents such as employment agreements, non-competition agreements, and transition services agreements.
They must have a strong understanding of corporate law, governance, and federal and state securities laws. Additionally, they should be able to provide counsel on the tax implications of mergers and acquisitions.
A qualified lawyer can assist clients with their business goals by making the transaction as smooth and profitable as possible.