Mergers & Acquisitions
Balch & Bingham has an active mergers and acquisitions practice involving both public and private companies. The firm's attorneys represent clients in friendly and unfriendly tender offers, leveraged buy-outs, stock and asset acquisitions and divestitures, mergers and other forms of business combinations. The firm's lawyers are experienced in identifying significant legal issues that arise in connection with stock and asset acquisitions and frequently advise on many aspects of an acquisition which are much broader than mere legal issues. Generally, the anatomy of a corporate transaction consists of preliminary advice and due diligence, negotiating the agreement, and consummating the transaction.
Preliminary Advice and Due Diligence
Buyers and sellers alike must address a variety of issues before beginning to negotiate a definitive acquisition agreement. Examples of such preliminary concerns include the advisability of using a Letter of Intent, the drafting of an appropriate Confidentiality Agreement, the conduct of due diligence, the consideration of basic federal income tax aspects, and the engagement of an investment banker/financial adviser, and our lawyers are experienced and knowledgeable in all aspects of these areas.
Negotiating the Agreement
Once a party to a business combination has determined the basic structure of the transaction and developed a fundamental understanding of the nature of the target company's business and potential sources of liability through preliminary due diligence, the parties will negotiate and execute a definitive acquisition agreement. The firm's attorneys are experienced in analyzing the different forms of agreements and principal sections which may be contained therein from both buyers' and sellers' perspectives, including representations and warranties, conduct of business prior to closing, conditions precedent to closing, sellers' disclosure schedules, indemnification provisions, and key differences between stock and asset purchase agreements. Some of the key elements of negotiating a definitive acquisition agreement include board of director considerations, labor and employment law issues, environmental issues, employee benefits, intellectual property representation and warranties insurance and indemnification provisions, among others.
Consummating the Transaction
The definitive acquisition agreement is designed to memorialize the terms of a deal and to operate as a risk shifting device through the representations, warranties, covenants and indemnification provisions contained therein. However, there is much work to be done before the transactions contemplated by a definitive agreement may be consummated. The lawyers who practice in this area are able to identify any corporate or regulatory approvals which may be necessary and to advise clients on any other matters which may be appropriate to consummate the transaction. Although the responsibilities of the parties to a transaction are largely determined by the particular facts and circumstances, examples of typical pre-closing requirements include shareholder approval, Hart-Scott-Rodino compliance, other regulatory approvals, due diligence and satisfaction of closing conditions.