Mergers and Acquisitions
Tristate Mergers and Acquisitions Attorney
The mergers and acquisitions attorneys at Jenkins Fenstermaker, PLLC recognize the importance of thorough preparation and attention to detail in transactions that impact the entire operation of one or more businesses. We understand and anticipate the ramifications of these deals, evaluating the impact of antitrust legislation, facilitating financing, working with a party’s CPA to determine the tax implications, and negotiating terms to close the deal. No matter the size of the transaction, the Jenkins Fenstermaker mergers and acquisitions attorneys are ready to help from the initial offer to closing the deal.
Features of Mergers and Acquisitions
Combining businesses or acquiring another business is often more complicated than setting the purchase price. Federal legislation like the Sherman Antitrust Act, the Clayton Antitrust Act, and the Federal Trade Commission Act places limits on mergers to prevent a monopoly that could cripple competition. States also have their own law intended to curb anticompetitive practices, such as the West Virginia Antitrust Act, the Kentucky Revised Statutes § 365.070 and § 367.220, and the antitrust laws found in Ohio Revised Code chapter 1331.
Businesses seeking to combine efforts or acquire other entities need the experienced voice of a tristate mergers and acquisitions attorney to craft transactions that further business interests without running afoul of federal or state antitrust legislation. These transactions can also raise issues involving the following:
- Real estate
- Labor and employment
- Intellectual property
At Jenkins Fenstermaker, we help clients plot a course through these issues and more to secure the maximum benefit for our clients in compliance with antitrust and other regulatory matters.
Due Diligence and Document Review
In a merger, acquisition, or other form of business transaction, the seller makes certain representations about the business, and the buyer operates under certain assumptions. A critical step at this time is a due diligence investigation, in which the parties can discover any potential issues, uncover any non-disclosed liabilities, and reveal any legal issues that might affect the upcoming transaction and the operation of the surviving business.
Due diligence and document review counsel in WV, OH, or KY verify the information provided on the health of the company and the status of its contractual relationships and compliance matters. In particular, due diligence may include assessing areas such as these:
- Title to assets
- Environmental investigations
- Existing debt structure and related documents
- Status of existing contractual obligations
- Validity of intellectual property claims
- Regulatory compliance
- Status of a company’s internal resources such as IT
Asset, Stock, and Other Buy-Sell Agreements
The actual transfer of a business can be conducted in a variety of different ways: an asset purchase; a stock purchase or purchase of the other underlying ownership interests (membership interests of an LLC for example); or a more complicated form such as a merger, consolidation, reorganization, share exchange, or stock swap. A skilled mergers and acquisitions attorney helps clients on both sides of the transaction determine which type of agreement is best, and the advice of appropriate counsel is critical to drafting solid asset, stock purchase, and other types of buy-sell agreements.
The key to any transaction is ensuring the agreement contains all the essential terms. The following considerations are typical:
- The parties’ respective rights and obligations
- Identification of the specific assets or stock to be sold and any assets or stock excluded from the transaction
- Whether any of the purchase price will be placed in escrow and when and how does that money leave escrow
- Pre-closing covenants and other conditions to closing
- Whether to include indemnification clauses
- How the parties will handle employment agreements and other contractual obligations following the merger, sale, or consolidation
Anticipating the unknown is where a mergers and acquisitions attorney is most valuable—anticipating what could go wrong and addressing those issues in advance in the agreement.
Financing is often a major factor in a merger or other acquisition. Financing options include but are not limited to the following:
Entity Selection, Merger, and Reformation Documents
Selecting the form of a business entity can be one of the most important decisions in a merger and acquisition scenario because of the many implications. A tristate mergers and acquisitions attorney helps the parties choose the best option for the success of the business. Experienced counsel helps the parties explore relevant considerations in choosing the business entity form, such as whether the business form avoids personal liability and the tax treatment of the business and its owners. Answers to these questions help dictate what form of business entity to select. Common business entity forms include these:
- Limited liability company (LLC)
- General partnership
- Limited partnership (LP)
- Sole proprietorship
After helping the parties choose the post-transaction business form, a tristate mergers and acquisitions attorney can also help dissolve and wind up the business participating entity that may not survive the transaction.
Closing Transaction Documents
Parties to mergers and acquisitions also benefit from engaging counsel for closing transaction documents to ensure that all parties have met their obligations and that the documentation accurately and completely memorializes the parties’ agreement. At this stage, the attorney also helps the parties decide the logistics of the closing such as whether to schedule a simultaneous signing and closing and whether the parties will meet in-person or virtually.
Closing counsel helps ensure that the necessary documentation is ready for and executed at the closing. These documents include but are not limited to the following:
- The merger, purchase, or sale agreement
- Board or stockholder consents
- Ancillary agreements such as promissory notes or employment agreements
- Financing documentation
- Proof of any regulatory approvals
Buyers and sellers may also be bound by certain covenants even after the closing. A mergers and acquisitions attorney can help the parties stay on top of post-closing commitments.
The preparation that goes into a merger and acquisition is no small task, and the considerations mentioned on this page are just a sampling of the many things running through the minds of the parties to such a transaction. Enlist the help of an effective tristate mergers and acquisitions attorney at Jenkins Fenstermaker, PLLC to make sure you have done everything you are supposed to in WV, KY, and OH, from a letter of intent through to closing. Contact us at our offices in Huntington or Clarksburg, by calling (304) 523-2100 locally or (866) 617-4736 toll-free. Alternatively, use our online contact form.