Mergers and Acquisitions

Overview

Whether the markets are up or down, whether the economy is expanding or contracting, mergers and acquisitions are an essential growth strategy for any company.

Our team advises the U.S. and Chinese companies and private equity and venture capital funds in complex domestic and cross-border merger, acquisition, and divestiture transactions, including public company mergers, strategic acquisitions and divestitures of private companies, and leveraged buyout transactions.

While the majority of the transactions we have closed are in the middle market, we also provide cost-effective alternative to our clients who are looking for practical, solution-oriented counsel. Our transactional teams assist clients in all phases of their acquisitions, from letters of intent, to due diligence, to the negotiation and drafting of transaction documents, through the various regulatory approval processes, and in the planning and implementation of post-closing integration activities. While the core of our merger and acquisition work is based in our corporate practice, our transactional teams include our colleagues throughout many of our practice areas, including intellectual property, employee benefits and executive compensation, employment, tax, government contracts and national security, financial services, environmental, real estate, antitrust and competition, food and drug and healthcare, and litigation.

Our merger and acquisition team is particularly strong in China-related cross-border transactions. We have represented many Chinese companies, including giant state-owned enterprises and small and middle sized private companies in acquiring the U.S. companies or assets.

Asset Sales and Purchases

One way for one company or business to "acquire" or buy another company or business is to buy its assets. Such a transaction has multiple variables and factors that need to be considered, such as:

How the sale will be structured, that is, what will the buyer use to pay for the assets
What can and can't be sold or transferred
If and when the shareholders need to approve of the sale
Who's responsible for the debts and liabilities of the merged or acquired company

Typically, asset sales and purchases in mergers and acquisitions can be a complicated matter, and so often the parties to such a transaction seek the advice of an experienced business law attorney.

Along with our corporate practice, the Firm’s Corporate and M & A group have a tremendous amount of experience counseling clients in the purchase of assets of distressed entities. We also have advised numerous other significant players in the financial industry in connection with the purchase of distressed assets in bankruptcy.

Corporate governance advice and General corporate counseling

The importance of corporate governance advice to clients has increased dramatically in recent years. The Firm provides sophisticated and timely advice regarding the many issues that arise as a result of recent changes in securities and accounting rules and other regulations.

With experienced lawyers from our Transactional & Securities and Securities Enforcement & Litigation Practices, combined with our White Collar Defense and Corporate Compliance & Enforcement attorneys, we offer a fully integrated approach to serving our clients' corporate governance needs. We counsel, advise, and represent corporate directors and officers of public companies on all corporate governance issues. We are committed to educating our clients with continual updates on developments from U.S. Securities and Exchange Commission (SEC) regulations and other standards governing public company conduct.

Our Transactional & Securities Practice attorneys frequently advise corporations, boards of directors, board committees, corporate officers, shareholders, and other parties regarding:

Board and committee best practices, composition, and procedures.
Board oversight and self-evaluation systems.
Board committee charters, guidelines, and codes of conduct.
Director and officer fiduciary duties and responsibilities.
Chief executive officer (CEO)/chief financial officer (CFO) certifications.
Executive compensation and succession.
Financial reporting and internal investigations.
Preparation of proxy statements for annual and special meetings.

Joint Ventures

Companies often look to enter new geographic or product markets through joint ventures or strategic alliances rather than by acquisitions or organic growth. Joint ventures and strategic alliances can allow the parties to benefit from their respective technologies, geographic presence and core competencies without the costs of internal development or external acquisition, while mitigating some of the risks of "going it alone."

We represent clients in the formation of domestic and international joint ventures and strategic alliances in a variety of industries, including telecommunications and cable, media, financial services, manufacturing, food and beverage, healthcare and pharmaceuticals. Our clients have included parties with financial resources or technical expertise teaming with a local partner to access a new market, as well as incumbent businesses seeking external partners to provide growth capital or access to cutting edge products and technology. We are well-versed in the antitrust and competition law issues raised by such alliances when the parties are actual or potential competitors in other markets.

In order to establish a Joint Venture in China, there are many things need to be considered; most importantly, it should be borne in mind that Chinese laws often (expressly or by implication) provide for qualification requirements on the Chinese partner to a joint venture. We help our client to establish Joint Venture in China in:

Finding a qualified and agreeable Chinese partner--it is essential to ensure that the Chinese partner has the legal capacity to act as an investor in an equity joint venture by entering into a joint venture contract.
Approval of NDRC and the “department in charge”
Drafting Letter of Intent and Project Proposal
Registration of Enterprise Name
Conducting Feasibility Study
Drafting Joint Venture Contract, Articles of Association and Enterprise Code
Selecting Location of Joint Venture
Getting of Approval Certificate and Business License from the Chinese Government and other on-going registration

Leveraged Buyouts

The Firm’s Leveraged Buyout (") practice has stellar credentials in LBO transactions. Our knowledge of business issues, industry opportunities, and market conditions, combined with our extensive experience with complex LBOs, enables us to deliver efficient, cost-effective solutions at all stages of these transactions.

We represent leading middle-market private equity funds, including buyout and venture capital funds, in their portfolio investment activities. The full spectrum of services we provide includes:

Structuring, negotiation, and execution of leveraged buyout transactions
M&A work for portfolio companies
Going-private transactions
PIPEs
Minority investments
Management compensation programs

In transactions where we represent the sponsor in a leveraged acquisition, we will also structure and negotiate the required financing for the transaction. Attorneys from our Finance practice are critical players at this juncture because of their extensive experience structuring and negotiating debt and equity financing, including:

Secured financings
Private placements of senior and mezzanine debt and equity securities
Various forms of seller financing

Proxy Contests

Our lawyers have advised clients on both sides of proxy contests. We've assisted incumbent management in defeating insurgents' attempts to nominate and elect directors or adopt stockholder proposals. We've also worked with insurgents to replace incumbent management and adopt related proposals. Our lawyers are well versed in forming strategies and tactics for a successful proxy fight, including adopting or dismantling takeover defenses, preparing SEC filings and, if necessary, commencing or defending proxy related litigation.

We are able to assist these clients at all stages, from the development of strategies, the evaluation of potential tactics, the preparation of materials for dissemination and filing, through the completion of a solicitation process, the holding of a shareholders’ meeting, and related litigation. Outside of proxy contests themselves, we are experienced in litigation concerning corporate control issues.

Recapitalizations

Business owners may choose recapitalization financing in order to fund ownership transitions in their companies or to sell a majority interest, generate liquidity, increase shareholder value or gain greater operational flexibility. In addition, a recapitalization is often an attractive alternative to an initial public offering or sale.

Our professionals work with business owners, management teams and shareholders to develop and implement recapitalization strategies that meet our clients’ specific goals and objectives. When a recapitalization is needed to support growth opportunities, we combine our comprehensive knowledge of capital markets with our personal relationships with private equity, mezzanine capital and senior debt sources to ensure our clients find the right financial partner with the best possible financing terms.