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Nossaman LLP

Corporate

Mergers and Acquisitions

Nossaman represents buyers, sellers, target companies and their shareholders in M&A transactions, including negotiated acquisitions, divestitures, mergers, and stock purchase and sale transactions. One of our first steps in evaluating a proposed M&A transaction is to evaluate various alternative structures from a tax perspective, as the tax considerations frequently drive the deal structure. We also evaluate and discuss with the client the costs and time to complete the transaction based on different deal structures.

At the outset, we also try to define an appropriate scope of due diligence work, to be performed by the most cost-effective personnel, with the goal of investigating what is material to the deal without having to "turn over every stone".

Our M&A work includes preparing and negotiating letters of intent, stock purchase agreements, asset purchase agreements and merger agreements. In these agreements we pay particular attention to exclusivity provisions, due diligence and financing "outs", break-up fees, drop dead dates, related termination provisions and post-closing liability for warranties and representations.

In addition, we are often asked to develop related ancillary agreements such as employment agreements, shareholder agreements, non-competition agreements, voting agreements, standstill agreements, non-disclosure agreements, indemnification agreements, earn-out agreements, escrow agreements, and business operating agreements.

We prepare and file Hart Scott Rodino Antitrust Improvements Act pre-merger notification and report forms when required, and we prepare, secure approval of and arrange for the filing in all applicable jurisdictions of merger agreements and articles of incorporation or amendments thereto when applicable.

Our clients for this work operate in a wide variety of industries, including healthcare, manufacturing, real estate, retail, construction, technology, water, energy, telecommunications, agriculture, hospitality, and web-based software. Our clients are private equity firms, venture capital companies, and operating companies in these industries. Nossaman attorneys recognize that every industry is unique, has its own special characteristics, terminology and manner of doing business, and is subject to its own special regulatory scheme. Therefore, every transaction must be tailored to the requirements of the client, the industry, and applicable regulations.

Nossaman attorneys are experienced in the process and requirements for obtaining shareholder (or other owner) approval of M&A transactions and, for stock deals, securing compliance with applicable securities laws. We regularly obtain permits for the issuance or exchange of securities from the California Commissioner of Corporations and conduct fairness hearings with the Commissioner to satisfy federal securities law exemptions.

Our work includes preparing proxy or information statements satisfying applicable disclosure requirements for use by shareholders (or other types of owners) in evaluating whether to approve a particular transaction, preparation and distribution of letters of transmittal for cash, debt or share exchange transactions, ensuring compliance with suitability standards applicable to purchasers of securities in stock transactions, and compliance with dissenters' rights. We provide legal opinions supporting our clients' compliance with contractual requirements when necessary and appropriate.

Nossaman attorneys and paralegals assist in the "due diligence" investigation of the opposite party where appropriate to identify potential or actual problems with its business, management or ability to complete the transaction and to satisfy applicable securities law requirements. We also regularly assist our clients to obtain appraisals and fairness opinions and in the preparation of pro forma financial statements.

When a merger or acquisition is accompanied by financing transactions (usually to either finance the acquisition itself or to provide the combined company with adequate working capital), we frequently assist the buyer or merger partner to negotiate and obtain such financing, either through a credit facility or equity financing from a strategic partner, venture capital fund, or other funding source.

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