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How to Prepare Your Company for an
M&A Exit
Presented on May 21, 2020 by Jason Putnam Gordon
Email: jgordon@polsinelli.com
2
• Today’s Discussion is General Information – Not Legal Advice.
• I will be discussing rules and exceptions. Those rules, exceptions, and
exceptions to the exceptions may not be applicable to your situation.
• You need to retain competent legal counsel to review all facts and
circumstances before providing advice.
• Off-the-cuff answers to your questions are not, and should not be taken as,
legal advice.
Important Caveats
3
• My Background
• Big Picture
• Process
• Common Pitfalls
• Questions
Overview
4
• Venture Capital and Emerging Growth Company attorney- practicing law
since 2005.
• Polsinelli is an Am Law 100 firm with approximately 900 attorneys in over
twenty offices throughout the US.
• I am in San Francisco but work with companies throughout the US and the
world.
• I love working with entrepreneurs on financings and as outside general
counsel.
My Background
5
Big Picture
Create Increasing Value
Idea(s)
(Intangible Assets)
Technicians who have
skills like: sales,
marketing, business
acumen
(Services)
Investors
(Capital)
6
Big Picture
Create Increasing Value
Idea(s)
(Intangible Assets)
Technicians who have
skills like: sales,
marketing, business
acumen
(Services)
Investors
(Capital)
Company Increases in Value
7
• Sell side
• Wealth is in the company
• Cashout/Liquidity
 Initial Public Offering
 Merger or Acquisition
• Buy Side
• Step into a Business
• Grow larger business
Realizing the Value Created
8
IPO or M&A
(recent PitchBook data)
0
200
400
600
800
1000
1200
1400
1600
1800
2015 2016 2017 2018 2019 2020
Exits Year Over Year
IPO Deal Count M&A Deal Count
9
• Preliminary Process
• Letter of Intent
• Diligence and Negotiation of Definitive Agreement
• Signing of Definitive Agreement
• Closing
• Post Closing Items
Process Overview
10
• Preliminary Process
• Preliminary Discussions
Strategic decision
Unsolicited offer
• Deliberations
• Experts
Lawyers
Bankers
Accountants
Strategic Advisers
• NDA
• Exclusivity Agreements
Preliminary Process
11
• Bankers
• Buy side or sell side
• Help ascertain value of the company
• Engagement Agreement
• NDA
• Exclusivity Agreement
Preliminary Process (cont.)
12
• Letter of Intent - Lays out the significant terms. Should have board
approval
• Generally non-binding
• Negotiated terms
Letter of Intent
13
• Due Diligence
• Opportunity for the buyer to know what they are getting
 Comb through the company
 Corporate records
 IP
 Premises
 Employee Issues
 Tax issues
 Other liability issues
Diligence
14
• Definitive Agreement
• Parties
• Structure
• Consideration
• Mechanics
• Reps and Warranties
• Covenants
• Conditions to closing
• Termination provisions/fees
• Indemnity
• MISC
Drafting and Negotiating the Definitive Agreement
15
• Pre-closing (Compressed if a simultaneous sign and close.)
 Board Consent and Signing
 Shareholder approval
 Dissenters rights – fair value of shares
 Contingencies – notice/consent for assignment of contracts
 Regulatory hurdles SEC and/Hart Scott Rodin
Process
16
• Closing
 Execution and exchange of final documents and certificates
 Filings with states and feds
• Post-closing
 Various other filings
 Completing notice and appraisal rights
 Integration
Signing
17
• Not negotiating engagement with banker or financial adviser
• Failure to negotiate key terms in letter of intent
• Not having fully executed, written agreements
• Not having adequate corporate books or records
• Acting as your own legal counsel or hiring the wrong counsel
Common Pitfalls
Polsinelli PC provides this material for informational purposes only. The material provided herein is general and is not intended to
be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances,
possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an
attorney-client relationship.
Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results;
that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and
should not be based solely upon advertisements.
© 2020 Polsinelli® is a registered trademark of Polsinelli PC. Polsinelli LLP in California. Polsinelli PC (Inc.) in Florida.
Questions/Comments
Recognized by legal research firm BTI Consulting as one
of the top firms for excellent client service and client
relationships, the firm’s attorneys provide value through
practical legal counsel infused with business insight.
PRACTICE STRENGTHS TO ALIGN TO YOUR NEEDS
 Health Care
 Financial Services
 Real Estate
 Intellectual Property
 Middle-Market Corporate
 Labor and Employment
 Business Litigation
GEOGRAPHIC FOOTPRINT SUPPORTS PRACTICE STRENGTHS
21
offices with full service
capabilities
Strategically located in
major financial centers
Located in gateway cities, as well as
offices with close proximity to critical
transportation and logistical hubs
BY THE NUMBERS
900
attorneys nationwide
45+
years of client service
170
services/industries
7
core practice areas
70th in Am Law’s
annual firm rankings.
Am Law 100 Firm
The American Lawyer
Recognized
for strongest client
relationships overall
BTI’s Industry Power Rankings
Excellence
in client service
BTI’s Client Service A-Team Report
11
national
Tier One
rankings
64
regional
Tier One
rankings
U.S. News and World Report’s “Best Law Firms”
Nationally
recognized
for Real Estate, Mid-Market
Transactions & Disputes Financial
Services, IP and Health Care

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How to Prepare Your Startup for an M & A Exit

  • 1. How to Prepare Your Company for an M&A Exit Presented on May 21, 2020 by Jason Putnam Gordon Email: jgordon@polsinelli.com
  • 2. 2 • Today’s Discussion is General Information – Not Legal Advice. • I will be discussing rules and exceptions. Those rules, exceptions, and exceptions to the exceptions may not be applicable to your situation. • You need to retain competent legal counsel to review all facts and circumstances before providing advice. • Off-the-cuff answers to your questions are not, and should not be taken as, legal advice. Important Caveats
  • 3. 3 • My Background • Big Picture • Process • Common Pitfalls • Questions Overview
  • 4. 4 • Venture Capital and Emerging Growth Company attorney- practicing law since 2005. • Polsinelli is an Am Law 100 firm with approximately 900 attorneys in over twenty offices throughout the US. • I am in San Francisco but work with companies throughout the US and the world. • I love working with entrepreneurs on financings and as outside general counsel. My Background
  • 5. 5 Big Picture Create Increasing Value Idea(s) (Intangible Assets) Technicians who have skills like: sales, marketing, business acumen (Services) Investors (Capital)
  • 6. 6 Big Picture Create Increasing Value Idea(s) (Intangible Assets) Technicians who have skills like: sales, marketing, business acumen (Services) Investors (Capital) Company Increases in Value
  • 7. 7 • Sell side • Wealth is in the company • Cashout/Liquidity  Initial Public Offering  Merger or Acquisition • Buy Side • Step into a Business • Grow larger business Realizing the Value Created
  • 8. 8 IPO or M&A (recent PitchBook data) 0 200 400 600 800 1000 1200 1400 1600 1800 2015 2016 2017 2018 2019 2020 Exits Year Over Year IPO Deal Count M&A Deal Count
  • 9. 9 • Preliminary Process • Letter of Intent • Diligence and Negotiation of Definitive Agreement • Signing of Definitive Agreement • Closing • Post Closing Items Process Overview
  • 10. 10 • Preliminary Process • Preliminary Discussions Strategic decision Unsolicited offer • Deliberations • Experts Lawyers Bankers Accountants Strategic Advisers • NDA • Exclusivity Agreements Preliminary Process
  • 11. 11 • Bankers • Buy side or sell side • Help ascertain value of the company • Engagement Agreement • NDA • Exclusivity Agreement Preliminary Process (cont.)
  • 12. 12 • Letter of Intent - Lays out the significant terms. Should have board approval • Generally non-binding • Negotiated terms Letter of Intent
  • 13. 13 • Due Diligence • Opportunity for the buyer to know what they are getting  Comb through the company  Corporate records  IP  Premises  Employee Issues  Tax issues  Other liability issues Diligence
  • 14. 14 • Definitive Agreement • Parties • Structure • Consideration • Mechanics • Reps and Warranties • Covenants • Conditions to closing • Termination provisions/fees • Indemnity • MISC Drafting and Negotiating the Definitive Agreement
  • 15. 15 • Pre-closing (Compressed if a simultaneous sign and close.)  Board Consent and Signing  Shareholder approval  Dissenters rights – fair value of shares  Contingencies – notice/consent for assignment of contracts  Regulatory hurdles SEC and/Hart Scott Rodin Process
  • 16. 16 • Closing  Execution and exchange of final documents and certificates  Filings with states and feds • Post-closing  Various other filings  Completing notice and appraisal rights  Integration Signing
  • 17. 17 • Not negotiating engagement with banker or financial adviser • Failure to negotiate key terms in letter of intent • Not having fully executed, written agreements • Not having adequate corporate books or records • Acting as your own legal counsel or hiring the wrong counsel Common Pitfalls
  • 18. Polsinelli PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. © 2020 Polsinelli® is a registered trademark of Polsinelli PC. Polsinelli LLP in California. Polsinelli PC (Inc.) in Florida. Questions/Comments
  • 19. Recognized by legal research firm BTI Consulting as one of the top firms for excellent client service and client relationships, the firm’s attorneys provide value through practical legal counsel infused with business insight. PRACTICE STRENGTHS TO ALIGN TO YOUR NEEDS  Health Care  Financial Services  Real Estate  Intellectual Property  Middle-Market Corporate  Labor and Employment  Business Litigation GEOGRAPHIC FOOTPRINT SUPPORTS PRACTICE STRENGTHS 21 offices with full service capabilities Strategically located in major financial centers Located in gateway cities, as well as offices with close proximity to critical transportation and logistical hubs BY THE NUMBERS 900 attorneys nationwide 45+ years of client service 170 services/industries 7 core practice areas 70th in Am Law’s annual firm rankings. Am Law 100 Firm The American Lawyer Recognized for strongest client relationships overall BTI’s Industry Power Rankings Excellence in client service BTI’s Client Service A-Team Report 11 national Tier One rankings 64 regional Tier One rankings U.S. News and World Report’s “Best Law Firms” Nationally recognized for Real Estate, Mid-Market Transactions & Disputes Financial Services, IP and Health Care