Mergers and Acquisitons : A Step-by-Step Legal and Practical Guide

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  • Format: Hardcover
  • Copyright: 2008-01-09
  • Publisher: Wiley
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Praise for Mergers and Acquisitions "Buyers and sellers both hope to be winners in an acquisition. But at the negotiating table, there is only one winner for each point and winning may mean a significant change in the deal economics. The insights in this book are crucial for both buyers and sellers and lay out the rationale for both sides of all of the money issues and other important deal points." -Todd Koopersmith, Vice President, Business Development, Iron Mountain "This book will help M&A professionals get up to speed on a wide range of deal points. It explains the legal background and transaction structuring issues in M&A transactions that every investment professional must know." -Gregory Burkus, founder and partner, Shasta Partners "This book is an essential resource for business people, and the lawyers and other professionals who advise them, to develop a real-world understanding of how the M&A process works. More importantly, it explains why specific deal structures, contractual terms and diligence procedures are used." -Jonathan Wolfman, Partner, WilmerHale, Boston "As U.S. M&A concepts, documents and practices become increasingly adopted internationally, this book will be an invaluable resource. It provides an excellent overview of the entire area, and is easily understandable by corporate executives and lawyers outside the United States." -Leo Specht, founder, Specht Rechtsanwalts-Gesellschaft mbH, Vienna, Austria

Author Biography

Edwin L. Miller Jr. is a partner with the law firm of Sullivan & Worcester LLP. He has practiced corporate and securities law for over thirty-five years and has extensive mergers and acquisitions experience in both the public and private markets. Miller also represents emerging and established technology companies in their financing, technology transfer, and acquisition activities. He has been named to The Best Lawyers in America publication and is the author of Lifecycle of a Technology Company: Step-by-Step Legal Background and Practical Guide from Startup to Sale (Wiley).

Table of Contents

Prefacep. xi
Acknowledgmentsp. xv
About the Web Sitep. xvii
Structuring Fundamentalsp. 1
Basic Corporate Finance Conceptsp. 1
Reasons for Acquisitionsp. 8
Three Basic Acquisition Structuresp. 13
Structuring Considerations: Overviewp. 16
The Acquisition Processp. 23
Overviewp. 23
Valuation of the Businessp. 31
Investment Bank Engagement Lettersp. 35
Confidentiality Agreementsp. 40
Letters of Intentp. 43
Stay Bonuses and Other Employee Retention Arrangementsp. 46
Business And Legal Due Diligencep. 49
Intellectual Property Due Diligencep. 64
From Signing to Closingp. 77
Appendixesp. 77
Corporate (Non-Tax) Structuring Consdierationsp. 79
Business Objectives and Other Nontax Structuring Considerationsp. 79
Acquisition Structure Diagramsp. 89
Forms of Acquisition Considerationp. 90
Debtp. 95
Cash, Stock, and Earnoutsp. 110
Successor Liability and the De Facto Merger Doctrinep. 116
Securities Law Compliancep. 118
Antitrust Compliance: Hart-Scott-Rodino Actp. 131
Equity Compensationp. 138
Incentive Stock Optionsp. 144
Employment Agreements and Noncompetition Covenantsp. 149
Employment and Benefits Lawp. 157
Acquisition Accountingp. 160
Recapitalization Accountingp. 165
Cross-Border Acquisitionsp. 166
Appendixesp. 169
Tax Considerationsp. 171
Taxable Versus Tax-Free Transactions: Overview of Relevant Situationsp. 171
Detailed Analysis of the Positions of the Target and Its Owners and of the Buyerp. 173
Taxable Transactions and Their Tax Effectsp. 175
Tax-Free Transactionsp. 180
Special Situationsp. 186
Golden Parachute Taxp. 191
The Definitive Acquisition Agreementp. 197
Economic Termsp. 197
Representations and Warrantiesp. 214
Covenantsp. 226
Additional Agreementsp. 230
Conditions to Closingp. 231
Survival of Representations and Indemnificationp. 233
Terminationp. 238
Miscellaneousp. 239
Representing Targets: A Summaryp. 239
Appendixesp. 242
Acquisitions of Public Companiesp. 243
Public-to-Public Mergers: What Is Different?p. 243
Case Law-Developed Fiduciary Duites and Standards of Reviewp. 247
Securities Laws and Public Company Acquisitionsp. 272
Anti-Takeover Devicesp. 283
Appendixp. 293
Leveraged Buyouts (Structural and Tax Issues) and Acquisitions of a Troubled Business (Creditors' Rights and Bankruptcy)p. 295
Leveraged Buyouts: Structural and Tax Issuesp. 295
Acquisition of a Troubled Business Generallyp. 302
Fraudulent Transfersp. 305
Acquisitions out of Bankruptcyp. 313
Indexp. 323
Table of Contents provided by Ingram. All Rights Reserved.

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