1. 1. Initial Engagement Sets the Deal Roadmap
The first meeting should turn the plan into a clear sequence. The attorney should identify the parties, structure, timing, funding, and decision-makers, then map the next steps in the M&A process.
Start with Facts That Shape the Deal
- Identify the buyer, seller, target, affiliates, owners, and deal form.
- Confirm price, payment method, funding source, closing date, and key assumptions.
- Flag debt, litigation, licenses, ownership issues, and contracts that can affect timing or leverage.
Define Client and Scope Early
- Complete conflict checks before sensitive information is exchanged.
- State whether the attorney represents the company, an owner, a buyer group, or another participant.
- Use the engagement letter to define scope, fees, reporting lines, and roles for tax and outside advice.
2. 2. Pre-Signing Review Tests the Deal before Commitment
Diligence often changes the transaction. The parties should connect what they learn to price, structure, covenants, consents, and closing conditions instead of leaving findings in a report.
Turn Diligence Findings into Deal Terms
- Review governance, material contracts, debt, litigation, employment, IP, tax, permits, and compliance records through legal due diligence.
- Set confidentiality terms and a request list, then trace change-of-control terms and required consents.
- Use key findings to revise economics, representations, covenants, indemnity terms, or closing conditions.
Keep the LOI Focused on Structure and Leverage
| Issue | Question | Deal Effect |
|---|---|---|
| Structure | Asset, equity, or merger? | Changes transfers, liability, approvals, and tax analysis. |
| Economics | Fixed price, adjustment, earnout, or escrow? | Shows how value may change before or after closing. |
| Process | Exclusivity, access, expenses, and timing? | Can affect leverage even if the duty to close is nonbinding. |
Structure
- QuestionAsset, equity, or merger?
- Deal EffectChanges transfers, liability, approvals, and tax analysis.
Economics
- QuestionFixed price, adjustment, earnout, or escrow?
- Deal EffectShows how value may change before or after closing.
Process
- QuestionExclusivity, access, expenses, and timing?
- Deal EffectCan affect leverage even if the duty to close is nonbinding.
3. 3. Signing Turns Negotiated Terms into Contract Duties
The final agreement should match the diligence record and agreed risk allocation. It should also state what must happen before closing and what rights or duties survive afterward.
Draft Around Known Deal Risks
- Match representations and schedules to the target's condition and exceptions.
- Define interim covenants, adjustments, indemnity steps, escrow or holdback terms, and survival periods.
- In an asset deal, separate assumed and excluded liabilities while recognizing that contract terms may not eliminate all successor or statutory liability.
Check Approvals, Conditions, and Exit Rights
- For a corporation governed by Business Corporation Law § 909, disposing of all or substantially all assets outside its usual or regular course requires board authorization and a shareholder vote.
- The § 909 vote varies with formation history and, for some older corporations, the certificate. LLCs and other entities follow different approval rules and governing documents.
- Set closing conditions, an outside date, termination rights, and agreed consequences if a condition remains unsatisfied.
4. 4. Pre-Close Work Connects Financing and Regulatory Approval
Signing does not remove execution risk. Lender terms, consents, and agency review can still control closing, so each workstream should stay tied to the purchase agreement.
Coordinate Financing with the Acquisition Agreement
- Compare lender commitments and funding conditions with the deal agreement before closing.
- Coordinate payoffs, lien releases, collateral, funds flow, and intercreditor issues through the acquisition finance workstream.
- Do not assume a lender commitment gives the buyer a financing condition; the deal agreement must provide that right.
Map Federal and Industry Approval Timelines
| Review | Timing Point | Deal Effect |
|---|---|---|
| HSR | The 2026 minimum size-of-transaction threshold is $133.9 million for closings on or after February 17, 2026. | Reportability also depends on valuation, other tests, and exemptions. The initial wait is generally 30 days, but 15 days for cash tender offers and certain bankruptcy sales. |
| CFIUS | Declarations have a 30-day assessment period; accepted notices have up to 45 days of initial review. | Investigation or mitigation can extend timing. |
| Industry approval | Timing depends on the regulator, license, and structure. | Notice, consent, transfer, or a new application may be needed. |
HSR
- Timing PointThe 2026 minimum size-of-transaction threshold is $133.9 million for closings on or after February 17, 2026.
- Deal EffectReportability also depends on valuation, other tests, and exemptions. The initial wait is generally 30 days, but 15 days for cash tender offers and certain bankruptcy sales.
CFIUS
- Timing PointDeclarations have a 30-day assessment period; accepted notices have up to 45 days of initial review.
- Deal EffectInvestigation or mitigation can extend timing.
Industry approval
- Timing PointTiming depends on the regulator, license, and structure.
- Deal EffectNotice, consent, transfer, or a new application may be needed.
5. 5. Closing Should Leave a Clear Record of What Survives
At closing, documents and funds move together. The file should also show which conditions were met or waived and which duties remain afterward.
Run the Closing from a Single Checklist
- Confirm approvals, consents, certificates, transfer documents, releases, and final schedules.
- Verify wire instructions, payoff amounts, escrow deposits, adjustments, and signing authority.
- Record which conditions were met, which were waived, and which duties survive closing.
Calendar Post-Closing Rights before the File Goes Quiet
- Track survival periods, indemnity deadlines, earnout dates, escrow releases, and adjustment steps.
- Preserve the signed agreement, schedules, closing set, approvals, and records needed for later claims.
- Follow the contract's accountant review, arbitration, litigation, or another dispute process if a disagreement develops.
6. Frequently Asked Questions
Can one M&A lawyer represent the company and every selling owner?
Not automatically. The attorney must identify the client and assess conflicts under the applicable ethics rules. Separate representation may be appropriate when owners have different economics, rollover terms, employment terms, or indemnity exposure.
What happens if due diligence uncovers a material issue after signing?
The agreement controls. Representations, covenants, closing conditions, termination rights, adjustments, and negotiated remedies determine what options remain.
Can a reportable acquisition close before the HSR waiting period ends?
Generally no. If the deal is reportable and no exemption applies, the parties generally may not close until the waiting period expires or is terminated. A Second Request can extend timing.
When is a CFIUS filing mandatory?
A filing can be mandatory for certain critical-technology transactions and certain transactions where a foreign government has a substantial interest in the investor. A CFIUS review may use a notice instead of a declaration.
7. Discuss the Deal before the Next Binding Step
SJKP's attorneys can review the structure, diligence record, financing path, approval needs, and draft documents before signing or closing. The review can focus on open conditions, decision points, and post-close duties that belong in the deal documents.
21 Aug, 2026
