Expert Guidance in Comprehensive Merger and Acquisition Strategies for Growth Companies
Our firm advises on the full range of merger and acquisition transactions. A significant number of our clients are growth companies with the sale of the business as the ultimate exit strategy.
Therefore, our expertise in mergers and acquisitions is critical to our clients’ ability to achieve their overall objective. Regardless of size, we realize that every transaction is important to our clients.
The need for sophisticated and coordinated real-time counsel and advice is critical in every transaction. As a result, we utilize our diverse team of lawyers to resolve issues, create solutions, and close transactions. Our experiences include representation of buyers and sellers in a wide variety of these transactions, ranging from simple asset or stock sales to more complex mergers, recapitalizations, and stock swaps.
The M&A Process
Mergers and acquisitions can be complex and time-consuming. Working with a Phoenix M&A lawyer can significantly streamline this process. Here is a general overview of what to expect:
- Collaborate with founders, principals, accountants, tax professionals, investment bankers or business brokers, and other key advisors to identify strategic objectives of the acquisition and a tax-efficient structure.
- If your business is retaining an investment banker or business broker, review and negotiate the engagement letter.
Letter of Intent and Negotiations
- Draft a non-binding letter of intent (LOI) or term sheet outlining terms of the M&A transaction.
- Negotiate key deal points, including structure, financial terms, contingencies, consents and approvals, representation and warranty insurance considerations, indemnification terms, exclusivity, confidentiality, and governing law.
- Gather and organize information about the relevant businesses and individuals.
- Populate a due diligence data room.
- Review, evaluate, and analyze diligence to uncover potential liabilities or issues.
Contract Drafting, Review, and Negotiation
- Draft, review, and negotiate definitive agreements, including purchase agreements, merger agreements, escrow agreements, earnout agreements, rollover equity agreements, operating and stockholders’ agreements, employment agreements, independent contractor and consulting agreements, intellectual property assignment agreements, license agreements, restrictive covenant agreements, promissory notes, and security agreements.
- Draft, review, and negotiate disclosure schedules and ancillary agreements.
Equity and Debt Financings
- Draft, review, and negotiate debt or equity financing documents related to acquisition financing, when applicable.
- Draft term sheets, private placement memorandums, and other offering documents to comply with federal and state securities laws.
Liquidation Analysis and Flow of Funds
- Prepare a dynamic models to illustrate allocation of sale proceeds.
- Compute and analyze net working capital adjustments, liquidation preferences, accrued dividends, indebtedness, sale bonuses, transaction expenses, and pro rata allocations of sale proceeds among owners and other stakeholders.
- Build wire instruction and flow of funds analyses to coordinate closing payments to owners, lenders, escrow agents, paying agents, and other third parties.
- Submit necessary documentation for regulatory review.
- Coordinate transfer or submission of applications for licenses and permits.
- Coordinate antitrust assessment, if applicable.
- Provide notice of offerings exempt from registration to federal and state securities law regulators, if applicable.
Other Closing Conditions
- Draft and circulate information statements and consent solicitations.
- Obtain board and stockholder or member consent approving transaction.
- Obtain payoff letters from lenders and other holders of indebtedness.
- Obtain lien releases from secured parties.
- Obtain customer and vendor consents.
- Provide change of control or assignment notices to customers and vendors.
- “Bring down” representations and warranties, if applicable.
- Satisfy or waive other closing conditions.
Signing and Closing
- At signing or closing, execute applicable documents.
- At closing, initiate payments and exchange other closing deliverables.
- Review issues regarding working capital adjustments and coordinate post-closing payments.
- Prepare escrow release instructions and coordinate post-closing payments from escrow.
- Review and coordinate earnout payments.
- Initiate or defend post-closing indemnification claims.
Types of Transactions We Handle
We handle various types of transactions related to the consolidation, purchase, sale, or restructuring of companies. For example:
Two or more companies combine their assets, liabilities, and operations into a single entity.
One company buys specific assets (such as equipment, intellectual property, or real estate) from another.
One company buys an equity interest in another company by purchasing shares or membership interests from existing owners.
Disposing of or “spinning off” a business division, class of assets, or subsidiary.
Establishing new entities owned in part by multiple owners to achieve specific business goals, often involving shared resources, risks, and rewards.
Creating collaborative agreements between companies to pursue mutual benefits without sharing ownership, such as referral agreements, revenue sharing agreements, co-marketing agreements, co-development agreements, license agreements, and distribution agreements.
Tender Offers and Redemptions
A company offers to repurchase shares from its stockholders or membership interests from its members.
Leveraged Buyouts (LBOs)
A company’s management or an external group acquires the company using a significant amount of borrowed money.
Coordinate with local counsel in other countries to navigate legal and regulatory complexities when transactions involve companies from different countries.
Restructuring and Insolvency
Transactions involving financially distressed companies, which might include reorganization, recapitalization, equity investment, or debt restructuring.
Plan and execute strategies for exiting investments, whether through sale, IPO, or other means.
Private Equity and Venture Capital Transactions
Private placement investment transactions involving private equity firms, venture capital firms, institutional investors, angel investors, friends and family, and strategic investors, including the sale and issued of preferred stock or other priced equity, simple agreements for future equity (SAFEs), or convertible notes.
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