An M&A (Mergers and Acquisitions) lawyer is at the core of the deal-making process, acting as the central figure in a network of deal parties and advisors. The M&A lawyer is typically the main point of contact for all involved parties, overseeing every aspect of the transaction to ensure it reaches a successful close.
Often, an M&A lawyer is an external specialist from a law firm, though some companies rely on in-house counsel. This role requires a wide array of skills, including:
- Strategic thinking
- Negotiation
- Multitasking
- Delegation
- Organization
- Complex drafting
- Precision and attention to detail
- Speed and efficiency
While grounded in corporate, contract, and fiduciary duty law, the M&A lawyer’s work also intersects with areas such as securities, tax, environmental law, labor, executive compensation, real estate, antitrust, intellectual property and more.
Key Responsibilities in an M&A Transaction
An M&A lawyer plays a role in nearly every stage of a transaction, from initial strategy to finalization. Some of the primary tasks include:
- Preparing the Target for Sale: Ensuring that corporate formalities are in order, vendor and supplier relationships are formalized, and any areas of potential risk are addressed.
- Drafting Preliminary Agreements: Drafting and negotiating key preliminary documents like the engagement letter, letter of intent, and confidentiality agreements.
- Structuring the Deal: Collaborating with tax and financial advisors to shape the transaction’s structure in a way that benefits all parties.
- Conducting Legal Due Diligence: Leading the due diligence process to review the target’s contracts, permits, organizational documents, and other relevant materials. Due diligence findings are typically summarized in a memorandum for the buyer.
- Developing an Implementation Checklist: Creating a detailed list of actions and required documents, helping keep the transaction on track.
- Drafting and Negotiating the Main Transaction Agreement: Drafting and negotiating the principal agreement, including representations, warranties, covenants, and closing conditions, all tailored to the findings of the due diligence process.
- Advising on Fiduciary Duties and Shareholder Rights: Advising directors and management on fiduciary responsibilities, minority shareholder rights, and identifying any conflicts of interest that may warrant heightened scrutiny.
- Reviewing Financial Adviser Materials: Reviewing the fairness opinion and other materials presented to the board to ensure compliance with fiduciary obligations.
- Disclosure and Compliance with Securities Laws: Managing disclosure requirements under federal securities laws and exchange standards, and preparing necessary documentation, such as Form 13Ds, press releases, proxy statements, Form 8-Ks, tender offers, and registration statements.
- Negotiation Support: Providing strategic guidance to the client during negotiations.
- Coordinating with Specialist Attorneys: Integrating feedback from various specialists (e.g., tax, environmental, and labor attorneys) into the transaction agreements.
- Drafting Ancillary Documents: Preparing ancillary transaction documents, including exclusivity agreements, legal opinions, bills of sale, assignments, escrow agreements, and transition services agreements.
- HSR Filings and Antitrust Compliance: Working with antitrust counsel to prepare and submit Hart-Scott-Rodino (HSR) filings.
- Managing Hostile Takeovers and Activist Interference: Advising on strategies to deter hostile takeovers or activist shareholder disruptions, which may involve drafting shareholder rights plans (poison pills) or advising on proxy contests.
- Securing Third-Party Consents: Identifying any necessary third-party approvals and coordinating with client representatives to obtain them.
The M&A lawyer’s broad expertise and strategic leadership are essential for guiding a transaction from inception through to its conclusion, aligning the deal team’s efforts with the client’s goals and mitigating risks to ensure a smooth closing.
