Mergers & Acquisitions

What is M&A?

“M&A” is an abbreviation for Mergers & Acquisitions. That’s just a fancy term for saying “buying and selling of businesses.” So, an M&A lawyer is just an attorney who helps in the process of buying and selling businesses.

Business Lawyer vs. M&A Lawyer

Just because someone is a business lawyer, it doesn’t always mean they’re an M&A lawyers. In fact, most business lawyers are not M&A lawyers. Mergers & Acquisitions is a specialty within business law that many business lawyers want to practice. However, most don’t have the training to do it, or at least to do it well.

Why does this matter? Because when buying or selling a business, there are no “re-dos.” So when choosing a lawyer to represent you, ensure your attorney has experience representing similar businesses on M&A similar transactions.

At Thorsen Legal, we have experience representing buyers and sellers of small and medium sized businesses across industries. Our clients have included business owners, investors, private equity groups, family offices, and individuals looking to buy businesses for themselves. However, not all M&A lawyers or law firms are the same.

Different Types of M&A Lawyers

M&A may seem like a niche, but it is actually a pretty broad field within law. Just like businesses are grouped based on size, industry, and focus, so too are M&A lawyers.

For example, there are M&A lawyers who only sell restaurants. Some that only sell software companies. And some that only sell manufacturing facilities. Within that, you have some M&A attorneys who only represent buyers. And within that, some that only work on deals of a certain size and geography.

So, there are M&A attorneys out there who only represent buyers of manufacturing facilities, doing $50M in revenue, whose business is located in South America!

Do you see now why it’s important to get to know our M&A attorney before hiring them?

Why Hire an M&A Lawyer?

The worst thing you can do is hire a non-M&A attorney to represent you on a business purchase or sale. This often happens when the attorney is a friend or family member. Or it’s an attorney who helped you on an unrelated matter, but the attorney but has no direct M&A experience.

We have worked on a number of transactions where the opposing counsel was a divorce attorney. Or a litigator, an employment attorney, or an estate attorney, or an immigration attorney.

We understand the world of law is big and it’s not something everyone learns about in school. But the closest analogy we can provide is this: A dentist is technically a doctor. If you needed a brain surgery, would you hire your dentist just because he was a doctor? Of course not!

Cost of Hiring an M&A Attorney

The other mistake clients make is hiring a non-M&A attorney thinking they’re going to save money. While some M&A lawyers charge high hourly rates, you’re paying for a highly specialized skill that not many lawyers have. Just like a brain surgeon is more expensive than a family medicine doctor.

But, in the long run, an M&A attorney can save you money because they know what to look for in M&A agreements (often called Asset Purchase Agreements or Stock Purchase Agreements). They understand the process of drafting a Letter of Intent (LOI), conducting Due Diligence, establishing Escrow, and Closing. An attorney without this experience will take much longer, not know what to look for, and rack up a much larger bill for you in the long run. Not only that, but an inexperienced attorney could miss some very important negotiation points in your agreement.

In M&A there are no re-dos. Once a deal is signed, it’s final. There’s no going back. You have one chance to do it right, so make sure you’re represented by legal counsel that knows what they’re doing.

What does an M&A Attorney Do?

Now that we’ve established what M&A is, what the difference between a general business lawyer and an M&A lawyer is, and the different types of M&A lawyers, what does an M&A lawyer even do? And (something we’ll answer shortly), when do you need to contact one?

1. What does an M&A lawyer do? An M&A attorney represents buyers and/or sellers in the transfer of ownership of a business from one party to another.
   • While every M&A transaction is unique, the process is generally the same and goes something like this:
     1. Draft or review a Letter of Intent
     2. Draft or review an Asset Purchase Agreement or Stock Purchase Agreement
     3. Review employment contracts
     4. Review insurance contracts
     5. Review any and all other business contracts (licensing agreements, consulting agreements, IP assignment agreements, etc.)
     6. Review and negotiate Representations & Warranties
     7. Negotiate purchase price along with any earn out provisions
     8. Advise on post-closing rights and obligations
     9. Consult on integration issues
2. When do you need to engage an M&A lawyer? We get this question all the time. The answer is, it depends. For most clients, most clients being owners of businesses that are selling, it will be once you’ve received a Letter of Intent (LOI). You don’t need an attorney to review an LOI because they’re non-binding (this means you’re not forced to sell the business if negotiations turn south). But it is a good idea to run the LOI by an M&A attorney just in case.
   
   As they say, this isn’t our first rodeo. And we’ve seen some buyers try to pull some pretty tricky things on unsuspecting sellers. Selling a business is a life-changing event. So our advice is this: if you get an LOI, contact an M&A attorney and have them review it. They’ll quickly tell you if the terms are fair and can advise you on next steps if you want to move forward with the transaction.

Big Firm vs. Small Firm for M&A Transactions?

If you’ve decided you need an M&A attorney, that’s great. But your work is only partly done. Now you need to decide which M&A attorney to hire. A common mistake we see some business owners make who have never hired an M&A attorney before, is thinking they need to go with the biggest firm they can afford.

This is can be a very costly mistake because some M&A attorneys charge over $2k/hour. That’s right, $2,000 per hour. Our fees are nowhere near that amount. In fact, our fees are about 1/4 of that. But anyway, it’s important to understand something: a big firm does not mean better service.

In large M&A law firms, you’ll often have an intro call with a Partner (this is a senior level attorney) who has likely been with the firm for over 10 years. But your work will be done by an Associate (who is often a new law school graduate) who has been with the firm for only a year or two. How much do you think the Associate knows about M&A, considering it’s a highly specialized field? Not much.

In fact, this is how law firms educate Associates. By having them work on projects and having clients pay for that education. The next time you pay a large law firm a large bill, know that most of that was likely spent educating a young new attorney.

For 95% of small and medium sized business sales, you want to avoid large law firms. Instead, find a sole practitioner (that just means an attorney who works by themself), or a small firm of 2-5 attorneys. Hourly bill rates will be around 1/4 to 1/2 of large firms, and you’ll be working directly with the senior level attorney who has personally worked on several M&A transactions in the past. You’ll reduce your bill, get the deal done faster, and get clearer and faster answers to your questions along the way.

Conclusion

Mergers & acquisitions transactions are complex. They require expertise to ensure that all parties are protected and that the transaction is successful. A mergers & acquisitions attorney can help you navigate these transactions by providing legal advice and drafting necessary documents while identifying potential risks. If you’re ever in need of an M&A attorney, the team at Thorsen Legal is available to help. We’ve worked on over $500 million of business sales, representing buyers and seller of all types. We would be happy to help you.