MERGERS AND ACQUISITIONS

Whether you are acquiring an existing business, structuring a joint venture or exiting a business by selling stock or assets, selecting the right attorney can add a substantial value to your transaction. Buying or selling a business can be one of the most important financial transactions of your life. The ramifications are obvious and the difference between a properly structured and drafted set of transaction documents can be the difference between success and failure.

I can make every stage of this process as productive as possible.

Structure

Unless there is a particular reason to acquire the stock of the seller (e.g. a transaction involving a valuable license like a liquor license in a particular location), most transactions are structured as a purchase/sale of the assets rather than a purchase/sale of the stock (or equity) of the seller. Other unique circumstances may call for a merger of two or more entities.

Preparation

In the preparation stage, with proactive planning, we can do our best to time the transaction to extract the maximum value for your business. In addition, as a seller, you can maximize the value of the assets by locking down intellectual property rights, securing lucrative contracts and minimizing ongoing liabilities.

Due Diligence

In the due diligence phase, I can lead and counsel you to know what to ask for, what to produce and then analyze the results to translate the results of the due diligence into the deal points. Due diligence can often be overwhelming for someone that has never done it before.

Drafting

In the drafting phase, as an attorney with experience handling transactions from just a few hundreds of thousands of dollars to tens of millions of dollars, I can help you successfully navigate through the drafting and negotiating phase. Properly drafted documents can help ensure a smooth transition and ensure that the buyer gets what he/she paid for and the seller gets the consideration he/she is promised. There are several areas where I will be well worth my fees, namely the representations and warranties, purchase price allocation, and purchase price payment structuring provisions.

With regard to representations and warranties, for sellers, it is important to negotiate reasonable limits on the representations and warranties the buyer is going to request. Having an attorney with the experience to know when to give and when to stand firm helps ensure that you will not be overexposed to litigation post-closing. For buyers, it is important to ensure that you actually get what you pay for. To do this, you need to ensure that you are provided with all of the necessary and available information about the business and the assets you are purchasing. This information is flushed out through the due diligence process and then negotiating representations and warranties of the buyer and by receiving disclosures from the buyer concerning certain exceptions to the representations and warranties. Analysis of these disclosures could change how the parties value of the deal depending on the circumstances.

With regard to purchase price allocation, for sellers, pushing as much of the purchase price to certain classes of assets that permit you to realize capital gains instead of ordinary income can net you tens of thousands of dollars, if not more, in tax savings based on the respective tax rates. For buyers, pushing as much of the purchase price to certain classes of assets that permit you to take an immediate or accelerated deduction instead of having to amortize those expenses over 15 years can net you tens of thousands of dollars in tax savings.

With regard to structuring payment terms, security and remedies for failure to pay, for sellers, since most deals are not all cash transactions, structuring security and remedies for non-payment help ensure that you get paid by incentivizing sellers to make timely payments. Earn outs, if properly structured, are great ways to maximize the value you can extract from the business, but they can also leave creative, opportunistic buyers with a chance to wiggle out of a payment obligation. Drafting earn out provisions should not be left to novices. For buyers, ensuring that you have recourse in the event of a breach of a representation and warranty is important. If an earn out is agreed to it is important to ensure that you really are getting additional benefits/revenues to pay the earn out due to the seller while also keeping the flexibility to make the best decisions for your business regardless of the presence of an earn out.

Due to the unique and high stakes nature of mergers and acquisitions work, having the right attorney in your corner can save you a substantial amount of money. Based on my experience handling corporate transactions, sometimes involving tens of millions of dollars, I can help you ensure that the biggest transaction of your life goes better than expected.