Handle Mergers And Acquisitions With Care And Confidence
Mergers and acquisitions (M&A) transactions are a constant in the capital markets. Our team has completed over $6 billion in M&A transactions. We can efficiently and effectively guide your company to a successful and timely completion.
Whether it is a restructuring before an IPO, a growth acquisition, an umbrella partnership C corporation (Up-C) or holding company reorganization, a de-SPAC transaction or a reverse acquisition, Anthony L.G., PLLC, can guide you through the process step by step. At Anthony L.G., we assemble a team of corporate merger professionals together with securities law professionals to ensure all aspects of a transaction are considered.
M&A transactions require attention to complex SEC and national exchange rules as well as general corporate law matters, including board and shareholder approval requirements and the offering of dissenters or appraisal rights. Great attention must be given to the board of directors’ fiduciary obligations and the internal processes utilized in completing adequate due diligence and negotiating the transaction. As part of the process, a company will need to decide the structure of the transaction, including whether it will be structured as an asset purchase or merger.
Consideration must be given to whether the transaction will involve a tender offer with merger, merger agreement alone or share exchange agreement. Part of the consideration will involve the necessary SEC or national exchange requirements.
(1) Where, due to the present or potential issuance of common stock, including shares issued pursuant to an earn-out provision or similar type of provision, or securities convertible into or exercisable for common stock, other than a public offering for cash:
- The common stock has or will have upon issuance voting power equal to or in excess of 20 percent of the voting power outstanding before the issuance of stock or securities convertible into or exercisable for common stock.
- The number of shares of common stock to be issued is or will be equal to or in excess of 20 percent of the number of shares of common stock outstanding before the issuance of the stock or securities.
(2) Any director, officer or substantial shareholder of the company has a five percent or greater interest (or such persons collectively have a 10 percent or greater interest), directly or indirectly, in the company or assets to be acquired or in the consideration to be paid in the transaction or series of related transactions and the present or potential issuance of common stock, or securities convertible into or exercisable for common stock could result in an increase in outstanding common shares or voting power of five percent or more. Part (2) of the provision is known as the “acquisition rule.”
In addition, when completing a reverse merger, prior to closing, both Nasdaq and the NYSE require a new listing application, whereby the combined entities will be required to meet the higher initial listing requirements as opposed to the easier ongoing listing requirements.
When obtaining shareholder approval for a merger transaction, the already complex SEC proxy and information statement rules are heightened. New SEC guidance has clarified that under certain circumstances, a target company can be viewed as engaging in a solicitation of the acquirer’s shareholder, requiring proxy rule compliance. In a merger transaction, the proxy rules govern all public communications, from the first announcement of a proposed transaction (generally upon signing of an agreement) through the completion of a shareholder vote, whether through a 14A proxy, 14C information statement or S-4/F-4 registration statement. The proxy rules require that all communications be filed with the SEC no later than the date the material is first used (i.e. published, sent or given to security holders). Timeliness and planning are key.
A merger transaction requires a law firm that understands all aspects of the transaction and can provide your team with confidence. We are that firm.
Seek Counsel From Anthony L.G., PLLC, Today
When managing large-scale and complex transactions like these, you need legal counsel who understands the technicalities involved in the process. Begin the process when you schedule an initial consultation with us. Call our office at 877-541-3263 or complete our online contact form.