Goal: M&A is principally the agreement between parent and target (or buyer and seller) in which one company either acquires another or merges with another. When you're doing a "deal," the goal is to arrive at an agreed upon document that both parties sign. Once that document signs, the lawyers are then in charge of moving all the pieces toward closing (i.e., basically making sure seller gets their money and buyer gets their company).

Why is the merger agreement (and its equivalents) so important: I'll alike this to buying a house. Buyer is operating on limited information and doesn't know a lot about the house. A lot of buyer's job will be studying the property to make sure the rough doesn't fall on their head the day after they move in. This process is basically diligence in an M&A deal. But even after diligence, you still don't know anything (either because there's only so much you can find out or because seller doesn't want to give all information). As a result, buyer will ask seller to make certain representations and warranties regarding the company that seller is selling. These will include things like, is the company subject to any litigation? has the company entered into any agreements that might materially effect the company? has the company received notice from its suppliers or vendors that they will discontinue their relationship? is the company in breach of any of its material contracts? Typically, seller will represent that the company is not subject to any of these things. The lawyers will negotiate the particular degree to which the representation is made. For example, in a litigation representation, buyer will ask that seller represent that company is not subject to any present or threatened litigation. Seller might object and say "well, what about oral threats from an employee to his boss that he's gonna sue? we can't possibly know whether the company is threatened with litigation at all times," so seller well revise the representation in the merger agreement to say something like "to its knowledge, company is not subject to any present or threatened litigation."

This is all very simplistic, but basically this is risk allocation between buyer and seller. Lawyers draft the merger agreement to make sure there's an adequate allocation of risk between both parties. Buyer wants as stringent representations and warranties as possible, seller wants looser ones. In the litigation rep example above, suppose buyer wins the negotiation and gets the rep that company is not subject to any litigation. Then, seller might be in breach of the representation when the agreement is signed if the oral threat above was made, and therefore buyer would not be obliged to close the deal (which is huge) or, in cases where there is indemnification, may be able to seek money from seller to cover whatever liability results from ensuing litigation.

So, buyer's goal is to cover their ass. They don't want to be liable for things unless they know what that thing is and can adjust the cash they give to the seller accordingly. On the flip side, seller's goal is to guarantee that the deal closes. In the deal world, if a seller attempts to sell a company, signs a definitive agreement (i.e., a merger agreement), but the deal fails to close, it looks very bad for seller. It scares off other potential suitors, leads to lower valuations, other shit. Prospective buyers will believe that Buyer discovered something in diligence that broke the deal and back off.

In the negotiation process, therefore, seller will attempt to give buyer as few rights as possible to back out of the agreement.

Roles:

So now we know in the very simplistic and shitty example above that buyer and seller want to reach a deal and the lawyers have to draft and negotiate a merger agreement. I'll now describe the roles each lawyer plays in the process. I'll start with the midlevel because the midlevel does the most work.

Midlevel: Partner typically calls associate, a lot of times on a Friday afternoon. Conversation will go like this:

Partner: "Hey Midlevel, we (i.e., client or buyer) just signed a term sheet with target (or seller). Can you put together a merger agreement/stock purchase agreement/asset purchase agreement?" (term sheet is an agreement to negotiate and sign a merger agreement, will contain a basic skeleton of key terms like purchase price, type of consideration (i.e., cash or stock or both), potential big agreement outs (i.e., can buyer back out if it can't secure financing?), a brief summary of interim operating covenants (i.e., what can seller do between signing and closing?), and other misc stuff.

Midlevel: Sure, no problem. I just had court side seats with my wife to watch the Knicks play game 7 of the NBA finals, but i can totally cancel that once in a millennium opportunity so I can draft this agreement for you.

Midlevel reviews the term sheet (in many cases, midlevel will have assisted partner in drafting and negotiating term sheet). Depending on the type of transaction, midlevel will look through previous deals he's done for client to find a precedent merger agreement that he's done for that client (this is good because client is familiar with the form), that's similar to the structure of the deal (i.e., if it;s a stock deal, midlevel will look for a stock purchase agreement), will try to find something "buyer" friendly (i.e., fairly all encompassing reps, strict interim operating covenants, and many opportunities for buyer to back out).

Midlevel then conforms precedent to terms of term sheet. Depending on how close the precedent already is, this can range from just changing the parties and consideration amounts (rare) to that plus+adjusting the reps and warranties to something buyer friendly, adding in deal specific concepts like preventing the out-going CEO of the selling company from working for a competitor for a specific period of time or soliciting employees of the then acquired company. If company is a healthcare company, for example, that deals with a lot of patient information, midlevel might also add in a representation regarding privacy (i.e., that target has complied with all laws concerning privacy, etc.).

Midlevel will also have reached out to other members of the firm to help out with portions of the merger agreement. For example, on the IP or ERISA or employee benefits or tax or labor points of the merger agreement, midlevel will want specialists in those departments to review the merger agreement and make appropriate edits.

After doing a basic conformation, midlevel will send agreement to specialists to be revised. Once midlevel receives specialist input, midlevel will then review and input the specialists' stuff. From there, midlevel will send the agreement to a junior associate for basic review and comment (will discuss further below). Once that's done, midlevel forwards agreement to partner. partner reviews and discusses with midlevel. partner will then make various comments to the agreement and midlevel will implement then. midlevel might again send the agreement to partner for review wand comment, but at some point the agreement is "done." midlevel (or partner) will then send to client for review. client will review the agreement and will probably schedule a call to discuss points of the agreement they don't understand, want to change, or process in general. Depending on the sophistication of the client, this process can be extremely painful or extremely quick. Sophisticated clients know key agreement points and zoom into them with laser like focus, direct the lawyers to revise them to how they prefer it (or seek lawyers advice about how they should proceed). Less sophisticated clients will admit that they don't know much and seek a lot of clarification on very basic points. This is great because client concedes ignorance and lawyer can be most useful here. Less sophisticated clients that can't concede their ignorance basically tell the lawyers to revise the merger agreement in the most ridiculous ways possible, and we as lawyers must agree because they're the client. For example, client might gloss over the mechanics of how the target's cash and debt is accounted for in the deal (very important), but fixate on the notice process (rarely negotiated or discussed).

Once client has provided comments and midlevel has implemented them, agreement is then sent to seller's lawyers.

This begins the back and forth between buyers and sellers to get the agreement they want. Sellers will review the agreement and revise it to make it more seller friendly. They'll send the agreement back, and then buyer will do the same.

Sometimes the parties will hop on the phone to discuss various key points that they can't agree on. This whole process can be long and drawn out or it can be very quick. Lot's of factors at play.

Midlevel will negotiate the lower level points of the deal and will draft all revisions to the agreement.

Partner:

Partner negotiates the term sheet to execution. Partner then reviews the merger agreement midlevel produces and revises it per his experience and understanding of the deal. Partner also manages the client on a higher level (i.e., assuring them that x clause is fine or seeking their comfort level on certain other areas). Partner negotiates high level points with senior lawyer of seller. Partner makes very key decisions.

Junior Associate:

1) Will review and revise the definitive agreement above to make sure all defined terms are used in the agreement, to make sure all defined terms are defined, to make sure all section references refer to the right sections to make sure there are no typos, errors, etc.

2) Will negotiate and draft disclosure schedules. Disclosure schedules are ancillary to the merger agreement and primarily concern the reps and warranties above. Suppose buyer discovered some litigation over the course of diligence. If that's the case, seller can't rep to there being no litigation otherwise seller will be in breach of that rep. so seller will ask to schedule the litigation as an exception to the rep. In essence, a disclosure schedule lists exceptions to the rep. Essentially, the rep becomes ("Except for xyz litigation, company is subject to no litigation") or ("except as scheduled on schedule 3.16(b), company is subject to no litigation"). Accordingly, a lot of junior level negotiation is done here. Buyer will want as few exceptions listed as possible. Seller will want as many as possible. Lot's of risk allocation.

3) Will draft ancillary documents to the merger agreement. For signing, this can involve making sure all the requisite corporate approvals are in place to approve the transaction (i.e., board consent, stockholder consent). You might also draft ancillary documents like employment agreements for continuing employees from the target (though this document might be taken out of your hands after you draft it, depending on how heavily negotiated it becomes).

4) Junior will be in charge with coordinating comments and review from specialists and making sure their input is reflected in the merger agreement and schedules.

5) Junior will draft signing checklist (i.e., all shit that needs to get done for signing) and closing checklist (i.e., all shit that needs to get done for closing).

6) Junior will coordinate items for both signing and closing (i.e., prepare signature pages, them out, compile them, keep track of where the various action items are, making sure wire instructions for cash are obtained, making sure stock certificates are issued, etc.).

7) Junior will conduct diligence. This will involve reviewing all of the corporate documentation seller provides and looking for potential issues. Also involves scheduling a call with seller's management to discuss various issues encountered. Scheduling a call canb e difficult because you need to make sure all the specialists on your side are available for the call so they can ask their questions, as well as making sure that the company has everyone on their side who can answer the questions.

Depending on how advanced you are (and how good your bedside manner is), you'll be asked to do the call. If your questions are basic and shitty, the call will be a waste of time for all parties involved. And partner will judge you negatively. A good management call establishes solid rapport with seller management, ensures a good working relationship, and at the same time ferrets information that will provide comfort on various diligence issues encountered during junior's review. Example:

Junior Associate (JA): I noticed that board did not approve the loan made to you in the amount of $5,000,000. why did you avoid board approval for that (accusatory tone)?

CEO: Uhhh... sorry we just forgot to provide the board consent (emails it to associate). Asshole.

JA: I looked in the data room for a board consent approving your loan of $5,000,000 but can't seem to find it. Can you tell me where it might be in the data room, or if it isn't in there, can you send it to me?

CEO: Oh shit, is that not int he data room? Well here it is. I'm really sorry about that.

See how the latter is better than the former? Former assumes wrongdoing. Latter assumes innocent mistake (or even failure on the associate's part), and CEO is more open.

The roles above aren't strict. Junior might delegate some of his tasks to a legal assistant. Junior might take on some of midlevels roles. Midlevel might take on some of partner's roles. It just depends on the deal and skill level of a team. For a Verizon/Vodafone, midlevel will probably be doing a ton more diligence than he or she would like. On a $5,000,000 acquisition of a mom and pop shop, midlevel will be doing everything and will try not to bother partner. In many cases, midlevel will leave most of the work to junior (great learning exercise), and midlevel will act as the partner (great showing of leadership if midlevel wants to make partner).

Your goal as an M&A lawyer should to be able to demonstrate complete autonomy in a deal. If, by the time you're a senior lawyer, you're able to almost fully negotiate all key points and run the entire deal, while leaving the partner to focus on other important things (like going out and bringing in clients), you are considered partner material from a skills perspective

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41902630)

Let's say you've got a new client. Could be a couple bros from MIT/CalTech who have a killer new technology they've developed and want to monetize, or it could be some serial entrepreneur who just sold his last company to Google and is bored of sitting on his yacht all day and wants a new gig. So sometimes they're very sophistracted and demanding, sometimes they don't know anything and you need to walk them through the steps, the documents ("bro, what's a ROFR?"), etc.

The first step is incorporation. As a junior, you'll be the one drafting the certificate of incorporation and getting it filed in Delaware. You'll probably be the incorporator: the founder of the company who appoints the initial board of directors, approves the bylaws, all that introductory stuff. You'll do that by written consent: you have a piece of paper setting out all those basic steps, and then at the end it has you resigning as incorporator. Once you sign the incorproator consent, the founders will be in charge. Sometimes you need to do something quirky, like the client has already incorporated an LLC in their home state instead of Delaware, so you'll do a conversion or merger to get them set up in the right structure. Certain companies might have more complex holding corp/LLC structures that are driven by arcane tax provisions and require incorporating a lot of random subsidiaries, but for the most part it's just a Delaware C-Corp.

You'll want to make sure that all these early steps are done correctly, because any mistakes will come up in diligence when someone wants to investor or buy the company. You want to make sure the founders are assigning their IP to the company, so you draft an agreement for that. You want to make sure they get stock in the company so you draft agreements for that. You'll give early, key hires restricted stock that vests either based on time or certain milestones, and make sure they file their 83(b) tax elections (seriously, not getting the 83(b) election is like a fireable offense for a junior, and you have 30 days to get it done). These are all done without anyone on the other side of the deal, so it's a lot of taking the same document you used for the last client, updating the names/dates/dollar amounts and getting them to sign.

The next major step is a venture financing round. Much like an M&A deal, there's a primary transaction document, the Stock Purchase Agreement, (SPA) by which the company is selling some percentage of itself to the investors for some cash. Like the merger agreement, there'll be a term sheet that the partner will work on negotiating. The lawyers representing the company will want to get the best valuation they can, and the lawyers representing the investors will want to have certain rights: we want X seats on the board, we want to be able to inspect the company's facilities, we want a veto on a sale of the company, etc. Sometimes its one investor but typically its a group of VCs, with the one providing the most money calling the shots for the group. Existing investors get the first crack at a new financing but sometimes new investors will be providing all the money for a given round.

Once all the terms are agreed to, the midlevel from one side, usually company side will take the first crack at writing the SPA to turn those business terms into a binding document. Like a merger agreement, there are also representations and warranties that assign risk between the parties, or making sure certain things are true (all the investors are sophisticated so you can utilize federal securities law exemptions, for example) and the juniors will be tasked with working with the company to fill out disclosure schedules, and on the investor side you'll be doing the diligence to figure out what the company's been up to and what's its liabilities are.

There are also a handful of other documents that will also contain those the provisions you agreed to in the letter of intent/term sheet. the Investor's Right Agreement (IRA), the Right of First Refusal and Co-Sale Agreement (ROFR) and the Voting Agreement (VA). You're also changing the capital structure of the company (creating a new class of stock, increasing the number of common stock, etc.) so you need to do an Amended and Restated Certificate of Incorporation (COI or Charter). The IRA gives certain rights to the preferred stock holders (investors get preferred stock, founders/employees get common stock), such as requiring that all employees that get hired sign IP Assignment provisions, or that existing investors get offered the chance to invest more in a subsequent financing before any new investors. The ROFR gives the preferred holders, then the company, the right to buy any stock that common holders are selling, or to sell their shares along at a pro-rata rate. The VA defines how people will vote on the election of directors, to ensure the VCs get the board seats they were promised, etc.

You can see the industry standard models for all of these docs on the National Venture Capital Association website. So, much of the drafting/negotiation will entail figuring out how to deviate from the standard docs, or if the company's done a VC round before, it's about how it will deviate from the prior round's docs. The mid-level will generally do that drafting, the junior will proof/review and run changes.

The junior on the company side is also going to take the lead in drafting the ancillaries: a board consent that authorizes amending the Charter and entering into the agreements and issuing the stock and all that. A shareholder consent that approves what that needs to approve. A certificate from the company's president and one from the secretary, saying certain things are true. A waiver from existing investors agreeing they were offered the chance ot invest in this round but turned it down. The junior on the investor side will be doing more diligence, and will draft of investor side ancillaries, such as a side letter/management rights letter (this has something to do with ERISA and so no corporate lawyer actually understands it) and the indemnification agreement between the company and the director who will be representing the investors. Both will be handling deal mechanics, like signature pages and heckling their client to sign the signature pages and asking the other side for the right signature block to put on the signature pages.You'll usually trade signature pages so company side can assembled the documents, with the signatures held "in escrow" until you release on closing.

Juniors on the company side might also get tasked to do a draft of the opinion (because no one really wants to be the person who drafted the option), which is the document by which the law firm, subject to enough caveats as to render the whole thing useless, is putting itself on the hook for certain, specific parts of the agreement, like that the deal documents are enforceable and the capitalization of the company is correct. This need to get approved by some super-senior partner not on the deal who is part of the opinions committee, who will just tell you get rid of any deviations from the form after you ask them for a week or two for any comments because we've got to get it approved by the other side before we close.

Once everything is agreed to and in final form, you "close": investors wire the money and receive shares. Juniors on the company side will handle a number of post-closing items, like getting stock certificates to the investors if they want them, a 228 notice to the shareholders of the company that didn't vote on the shareholder consent to tell them what the other shareholders voted for, maybe a Form D (notice that the company engaged in an unregistered sale of securities in reliance on certain federal exemptions to registration).

There can be any number of quirks, like some of the insiders want to sell their stock along with the financing (rare but you see it), or if they just want a quick infusion of money instead of a real round, you can do a venture debt deal: investor gives them the money now without figuring out how much stock that's worth, and it accumulates interest until the next financing round, when outstanding principle + interest get converted to equity at the same rate as the new money coming in. Sometimes you combine the ROFR and the VA into one agreement. Sometimes you have multiple closings, so the the investors poney up more money for more stock at a later date if the company gets enough subscribers or something. Fun stuff like that.

Between financing, company side emerging company work entails doing a bunch of different things for the companies that are too small to have their own inside departments. You'll draft the stock option plan and form stock option grants (running everything by the tax/employee benefits people), you'll do a board consent appoints Bob Smith the new VP of Operations, you'll read contracts they want your advice on, etc. A lot of this stuff is pretty mundane and gets pushed down to juniors. (I've got a stack of restricted stock grants I have to "draft" right now that I'm putting off by writing this, for example.) But you really get to know the company and how it works, so that when it (hopefully) comes time to go public or sell the company off, you can help them figure out what the important things are for the S--1 or merger agreement.

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41904231)

now explain gamergate

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41907388)

explain to me this though - say it turns out one of the representations was false/incomplete. what happens? if company X bought company Y it can't sue company Y, it *is* company Y

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41907398)

not sure if I’m alone in this but holy shit this makes litigation sound great. I cannot imagine caring about any of this

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41908938)

OP this you?

(http://www.autoadmit.com/thread.php?thread_id=4760115&forum_id=2#41909665)