In M&A transactions, some lines can’t be uncrossed.
“Whether you’re a buyer or a seller, you’re engaging in a transaction where you’ll be sharing some of your company’s most confidential information with the other side,” says Howard M. Groedel, an experienced M&A lawyer and partner at Ulmer & Berne LLP. “More often than we’d like, we see business people sharing that information without the benefit of a tightly drafted confidentiality agreement. Once it’s shared, you can’t put the genie back in the bottle.”
As head of the firm’s Business Law Group, Groedel counsels his M&A clients on confidentiality agreements and other important issues during deal negotiations.
Here are four ways legal counsel can guide you through the M&A process.
Assess your needs
The rhythm and flow of M&A transactions is second nature to an attorney who has already been through the process many times.
“If you have an attorney that is familiar and experienced with doing deals, you’re going to make the transaction go that much smoother and eventually be a success, even if it’s a transaction that doesn’t close,” Groedel says.
A knowledgeable M&A lawyer will understand the due diligence process and the different parts of a transaction a business needs to consider, he says. This could be tax considerations, the Employee Retirement Income Security Act or environmental and securities laws, to name a few.
“An M&A lawyer is experienced on these issues and can bring in the right people, so you have the right resources focusing on those areas critical to making the entire transaction work,” Groedel says.
Get ahead of issues
Simply put, there’s no reason to delay bringing your legal counsel into a deal negotiation.
“It’s important that it starts right at the beginning, before the parties necessarily start talking,” Groedel says. “Your legal counsel can advise you on areas you should focus on before you start the process. Are there things inside the company that should be cleaned up in terms of corporate formalities, or agreements that haven’t been buttoned down? That way, once the process begins, you can have your house in order or be prepared to respond if the other side does identify a potential risk.”
If there are items that require some type of response at this early stage, you must be ready to explain how you mitigated the risk. M&A lawyers can help business owners identify and start to prepare for potential issues before parties start drafting purchase and sale agreements, says Groedel. “So, when the M&A deal documents start being prepared, there aren’t too many gotcha moments that pop up,” he says.
Inform key decisions
One of the risks of proceeding into a deal without legal guidance is taking actions without a clear understanding of the consequences.
“Certain expectations may have already been established in the other parties’ minds that may need to be adjusted later on,” Groedel says. “If the business owner has already started putting together a letter of intent or, in fact, has already signed a letter of intent without an M&A lawyer’s counsel, that can raise a whole host of potential problems. Even though it’s nonbinding, it can jam up a transaction later on.”
These problems can result when owners make decisions that aren’t fully informed (though that goes with the territory).
“Business dealmakers are doing business and talking to people all the time,” Groedel says. “If they were thinking about the risks like we do, in every conversation, they probably wouldn’t be as successful in their businesses as they otherwise are. It just fits with how they run their business. They are more open.”
In contrast, M&A lawyers are trained to spot potential headaches before they put a deal at risk. “Lawyers, we are risk management professionals,” he says. “That’s part of our job.”
Read between the lines
Even the best-drafted agreement is not going to protect parties against every possible risk. There could be areas that come up after a transaction closes that haven’t been addressed by legal documentation.
“That’s why part of what I do and part of what a good M&A lawyer will do is talk to the client,” Groedel says. “You may be selling your company to this business and retiring and moving on to the next phase of your life. But is this a party that you want to do business with? I like to have clients think about the other side of an M&A transaction as if it were a party they were going to engage with on an ongoing basis. Is this a party I can trust? Does this party have the same culture? When they tell me something, can I count on it?”
The lesson here is to value legal counsel in your M&A dealings. But at the same time, don’t assume that a contract will cover everything.
“There are things that can’t always be protected by an agreement,” Groedel says. “In the end, these are things that come down to some of the intangibles that the business owners have to assess as part of whether they want to make an agreement with the other side.”
