By Richard D. Harroch, David A. Lipkin, and Richard V. Smith
Preparing your company for sale can be difficult and time-consuming. Successful merger and acquisition (“M&A”) transactions require advance preparation, sophisticated advisors, a dedicated management team, and an understanding of the key business, financial, and legal issues that will be involved.
The following are a number of key preliminary steps that a private company positioning itself for sale should take in advance of the formal start of an M&A process.
- 1. Prepare an “Overview” or “Executive Summary” Slide Deck
- 2. Prepare for Extensive Due Diligence by the Buyer
- 3. Prepare an M&A Online Data Room
- 4. Prepare Draft Disclosure Schedules
- 5. Review the Seller’s Financial Statements and Projections
- 6. Plan on How to Get Multiple Bidders to the Table to Help the Seller Get the Best Deal
- 7. Interview and Hire a Great M&A Lawyer and a Great M&A Legal Team
- 8. Consider Hiring an M&A Financial Advisor or Investment Banker
- 9. Prepare a Good Form of M&A NDA
- 10. Assemble Your M&A Negotiating Team
1. Prepare an “Overview” or “Executive Summary” Slide Deck
Selling companies frequently prepare an “Overview” or “Executive Summary” deck. This deck is typically 15 to 20 slides in a PowerPoint presentation and is intended to showcase the company’s products, technology, team, financials, market opportunity and more to prospective buyers.
You will want your deck to cover the following topics, roughly in the order set forth below and with titles along the lines of the following:
- Company Overview
- Mission/Vision of the Company
- The Team
- The Problem
- The Solution
- The Market Opportunity
- The Product
- The Customers
- The Technology
- The Competition
- Business Model
- The Marketing Plan
Here are some tips for M&A decks:
- Don’t make the deck more than 15 to 20 slides long (at the beginning, buyers have limited attention spans). If you feel you need to add more information, include it as an appendix.
- Don’t have too many wordy slides.
- Don’t provide excessive financial details, as that can be provided in a follow-up.
- Don’t try to cover everything in the pitch deck. Your in-person or virtual presentation will give you an opportunity to add and highlight key information.
- Don’t use a lot of jargon or acronyms that the recipient may not immediately understand.
- Don’t underestimate or belittle the competition.
- Don’t have a pitch deck that looks out of date. You don’t want a date on the cover page that is several months old (that is why we avoid putting a date on the cover page at all). And you don’t want information or metrics in the deck about your business (or market statistics) that look stale or outdated.
- Don’t have a poor layout, bad graphics, or a low-quality “look and feel.”
- Do convince the viewer of why the market opportunity is large.
- Do include visually interesting graphics and images.
- Do send the deck in a PDF format to recipients in advance of a meeting. Don’t force the recipient to access it from Google Docs, Dropbox, or some other online service, as you are just putting up a barrier to someone actually reading it.
- Do tell a compelling, memorable, and interesting story
- Do use a consistent font size, color, and header title style throughout the slides, and of course, a font size that is easily readable.
- Do emphasize the traction you have gotten with customers, partners, etc.
- When you make your in-person or virtual presentation, don’t read from the slide deck. The slide deck should serve as an effective adjunct to your presentation, not its table of contents.
In addition to the “Overview” or “Executive Summary” deck, the selling company should consider preparing specialized decks for more detailed presentations to buyers, such as a Product and Tech deck, a Financial deck, and a People deck. These decks are typically used after the buyer has shown preliminary interest following the first presentation and wants to learn more.
2. Prepare for Extensive Due Diligence by the Buyer
M&A transactions involve a significant amount of due diligence by the buyer. Before committing to the transaction, the buyer will want to ensure that it knows what it is buying, what obligations it is assuming, the nature and extent of the selling company’s contingent liabilities, problematic contracts, litigation risks, intellectual property issues, and much more. This buyer focus is particularly true in private company acquisitions, in which the selling company has not been subject to the scrutiny of the public markets.
Recent M&A activity and litigation have highlighted the need for a buyer to conduct careful due diligence as to potential risks, especially investigating financial statements, data breach, data privacy and cybersecurity issues, intellectual property issues, regulatory risks (such as antitrust and CFIUS issues) and potential employment law and sexual harassment liability.
The buyer’s due diligence will place significant demands on the management time and resources of the selling company. Since management typically is lean and already devoting their full time and attention to the underlying business, striking the proper balance between business priorities and satisfying the buyer’s due diligence requests is essential. The selling company’s M&A advisors (financial and legal) can help management develop optimal work streams, as well as provide guidance on what to expect from the buyer’s due diligence process and how to best respond to diligence requests.
By carefully planning for the buyer’s due diligence activities, efficiently managing resources devoted to the diligence process, and properly anticipating the related issues that may arise and risks that the buyer may identify, the selling company will be better prepared to respond to questions, negotiate mitigation measures if necessary, and successfully consummate a sale of the company.
3. Prepare an M&A Online Data Room
To most efficiently deal with the due diligence process, selling companies should set up an online data room very early in the course of the M&A process. An online data room is an electronic warehouse of key company documents. The online data room is populated with the selling company’s important documents, including corporate documents, financial statements and financial information, contracts, intellectual property information, employee information, a capitalization table, and much more.
The online data room allows the selling company to provide valuable information in a controlled manner and in a way that helps preserve confidentiality. The online data room helps expedite an M&A process by avoiding the need to have a physical data room in which documents are placed and maintained, and by enabling documents to be accessed by persons located virtually anywhere 24 hours a day.
Importantly, an online data room can be established to allow access to all documents, or only to a subset of documents (which can vary over time), and only to preapproved individuals. These features are especially useful if competitors will be granted data room access. Most online data rooms also include a feature that allows the seller or its counsel or investment bankers to review which individuals representing the buyer have been in the online data room, how often that party has been in the online data room, the dates of entry into the online data room, and the exact documents reviewed or printed by each such individual. This information can be very useful to sellers as an indication of the level of interest of each potential bidder for the selling company, and helps the selling company understand what is most important to each buyer.
Selling companies need to understand that populating an online data room will take a substantial amount of time and require devotion of significant company resources. Although many privately held companies also use online data rooms for financing rounds, much more information and documents will need to be added to the data room in connection with a possible M&A deal. Here, experienced M&A counsel can provide the selling company with a detailed list of the types of information and documents that potential buyers will expect to see in an M&A-focused online data room. M&A counsel also can provide assistance in populating the data room and screening potentially sensitive documents (such as legally privileged documents or documents which disclose personal information). M&A counsel can also assist in staging the posting of documents over time (for example, withholding documents that include trade secrets or sensitive customer information until a later stage of the process after a buyer has clearly “committed” to the transaction).
The selling company should not grant access to the online data room until the site has been fully populated, except in rare circumstances, and then only if it is clearly understood that the buyer is initially being granted access only to a subset of documents. If the selling company allows access before all material documents have been included, adding documents on an uncontrolled rolling basis, potential buyers may become skeptical about whether the selling company has fully disclosed all information and documents that potential buyers deem material.
Access to an online data room is made via the internet, through a secured process involving a user ID and a protected password. Typically, two-factor authentication should be required to access the data room. An acknowledgement of confidentiality obligations also usually is required. As an additional security precaution, any documents printed from the online data room will often include a watermark identifying the person or firm that ordered such printing. And, sometimes it is desirable to prevent selected users who otherwise have access to an online data room from printing or downloading selected documents.
The selling company will need to ensure that its books, records, and contracts can stand up to a buyer’s robust due diligence investigation. Here are some issues that can arise in connection with an online data room due diligence process:
- Contracts not signed by all parties or missing exhibits
- Contracts that have been amended, but without the amendment being available or its terms signed
- Missing or unsigned Board of Directors, Board committee, or stockholder minutes or resolutions
- Board, committee, or stockholder minutes/resolutions missing referenced exhibits
- Inaccurate or out-of-date capitalization tables
- Incomplete/unsigned employee-related documents, such as stock option agreements or confidentiality and invention assignment agreements
- Inclusion of documents that have expired or been terminated and are no longer relevant to a buyer’s due diligence investigation
- Misfiling of documents under the wrong categories
Deficiencies of this kind may be so important to a buyer that it will require them to be remedied as a condition to closing. That can sometimes be problematic, such as instances where a buyer insists that ex-employees be located and required to sign confidentiality and invention assignment agreements. Avoid these problems by “doing diligence” on your own company before the buyer does it for you.
4. Prepare Draft Disclosure Schedules
Disclosure schedules are an integral part of any M&A transaction. The disclosure schedules contain information required by the acquisition agreement, and importantly, provide a means for the selling company to disclose exceptions to selected representations and warranties. An incorrect or incomplete disclosure schedule could result in a breach of the acquisition agreement and potentially entitle the buyer to walk away from the transaction before closing, or result in significant liability on the part of the selling company or its stockholders following the closing. In contrast, well-drafted disclosure schedules will provide substantial protection against post-closing allegations that the seller breached its representations and warranties.
Typically, the drafting of the disclosure schedules is undertaken by management or other key employees of the selling company, working together with its M&A financial advisor or investment banker or M&A counsel. The disclosure schedules will require a significant amount of time to assemble. Often, the disclosure schedules go through a dozen or more drafts and will often involve negotiations between the buyer’s and the seller’s counsel.
There are a number of mistakes often made by a selling company in preparing the disclosure schedules. Here is a list of the more common mistakes:
- The capitalization table is inaccurate (such as incorrect amounts for stock, warrants, options, etc.).
- The list of material contracts is incomplete or inaccurate.
- The description of the material contracts is inadequate (such as including the wrong title of the contract, not listing all amendments to the contract, or not listing the parties to the contract).
- The schedule of leases for the company does not contain all required information (such as title of the lease, landlord, date of lease, location, rent and other payments, security deposit, etc.).
- The intellectual property disclosure is incomplete (such as missing information about patents, trademarks, service marks, domain names, etc.).
- The list of software used in the business (including any open source software) is incomplete.
- The schedule for employees is missing salary, bonus, or other key information, or contains personal information which should not be disclosed.
- The schedules are missing the listing of any employment agreements, or officer or director indemnification agreements.
- The schedules setting forth the largest customers or suppliers are missing key data (such as dollar amounts involved or descriptions of the relationships).
- The disclosure schedule listing any key contracts that have a “change in control” provision is incomplete or inaccurate.
- The disclosure schedule listing all employee benefit plans (medical, dental, vision, life insurance, disability, stock options, bonus plans, ERISA plans, 401(k) plans, PTO plans, etc.) is incomplete or not descriptive enough.
- The disclosure schedule for insurance policies is incomplete (such as missing information on the type of insurance, the carrier, the policy number, the term, the deductible, and the annual premium).
- There is an incomplete schedule of any required disclosures regarding litigation, arbitration, investigation, or other governmental proceedings.
- The schedule of any liens on the company’s assets is incomplete (such as failure to list the secured party, what contract it relates to, the date of the contract, and other relevant information).
- The tax disclosure schedule is incomplete (such as failing to disclose all income tax jurisdictions the company is subject to, any pending or past tax audits, any delinquent tax returns, or any unpaid tax liability).
- The disclosure schedule for bank accounts is incomplete (such as missing information about the type of account, the account number, the bank, and the authorized signatories).
- There are incomplete financial statements or liability disclosures, which are required by the seller’s financial representations and warranties.
- One or more disclosure schedules omit to set forth critical “exceptions” necessary to make the related representations and warranties in the acquisition agreement accurate and complete (such as failing to disclose breaches of contracts, violations of laws, and claims by third parties).
Importantly, disclosure schedules should be compiled early on in the M&A process, and carefully and thoroughly. Disclosure schedules prepared at the end of the M&A process and close to execution of the definitive acquisition agreement likely will be incomplete or inadequate, creating problems to closing a deal or injecting unnecessary risk to the seller into the transaction.
Ideally, this task should be undertaken during or immediately after populating the online data room. Although the text of the acquisition agreement will dictate the contents of the disclosure schedules, the seller should not wait to prepare or receive the first draft of the acquisition agreement. M&A counsel can provide the selling company with a template of typical representations and a “skeletal” outline of the disclosure schedules to enable the selling company to get started on the process. Later (after the acquisition agreement has been negotiated) the information can be rearranged to the extent necessary for consistency with the acquisition agreement.
5. Review the Seller’s Financial Statements and Projections
One of the most important diligence activities that a buyer will undertake is a review of the selling company’s financial statements and projections. The buyer wants to be comfortable that the financial statements were prepared in accordance with generally accepted accounting principles (GAAP), consistently applied, and that they fairly present the selling company’s results of operations, financial condition, and cash flows.
Ideally, the selling company should be prepared to provide audited financial statements since these will afford a buyer with a higher degree of confidence in their accuracy compared to unaudited financials. However, sophisticated buyers understand that early stage private companies frequently do not wish to incur audit costs, and in most instances such buyers will not view the lack of audited financials as an obstacle to completing a transaction. (However, in some instances completing an audit might be a closing a condition, especially if the buyer is a public company.)
The buyer will be concerned with the seller’s historical financial statements and related financial metrics, as well as the reasonableness of its projections of its future performance. Management of the selling company, particularly the CEO and CFO, needs to anticipate the following topics of inquiry or concern from a buyer:
- What do the seller’s annual, quarterly, and monthly financial statements reveal about its financial performance and condition?
- Are the financial statements audited, and if so, for how long and by whom, and is the audit report unqualified?
- Do the financial statements and related notes reflect all liabilities of the seller, both current and contingent?
- Are the profit margins for the business growing or deteriorating?
- Are the projections for the future and underlying assumptions reasonable and believable?
- How do the projections for the current year compare to the board-approved budget for the same period?
- What normalized working capital will be necessary to continue running the business following the acquisition?
- How is “working capital” to be determined for purposes of the acquisition agreement? (Definitional differences can result in a large variance on the ultimate price for the deal.)
- What capital expenditures and other investments will need to be made to continue growing the business?
- What are the seller’s current capital commitments?
- How much is the seller spending on research and development?
- What is the condition of the assets?
- What indebtedness is outstanding or guaranteed by the seller, what are its terms, when does it have to be repaid, and are there related liens?
- Are there any unusual revenue recognition issues for the seller or the industry in which it operates?
- Are there any accounts receivable issues?
- Are the capital and operating budgets appropriate, and have necessary capital expenditures been deferred?
- Have the seller’s net income and earnings before interest, tax, depreciation, and amortization (EBITDA) and any adjustments to EBITDA been properly calculated? (This is particularly important if the buyer is obtaining debt financing.)
- What off-balance sheet liabilities (such as warranty liabilities) does the seller have?
In addition, the seller should consider engaging a consultant to perform a quality of earnings report (QER). A QER can alert the seller to potential business and financial issues which might be of concern to a buyer relating to, among other things, EBITDA, cash flow issues, certainty of monthly revenue and gross margin, customer concentration and credit risk, critical provisions of material contracts, working capital fluctuations, tax matters, and off-balance sheet liabilities. A QER also can be provided to bidders to help confirm their due diligence review conclusions with respect to the business and financial performance and condition of the seller.
6. Plan on How to Get Multiple Bidders to the Table to Help the Seller Get the Best Deal
The best deals for sellers usually occur when there are multiple potential bidders. By leveraging the competitive environment, or creating the appearance of a competitive environment, sellers can often obtain a higher price, better deal terms, or both. Negotiating with only one bidder (particularly where the bidder knows it is the only potential buyer) can put the selling company at a significant disadvantage, especially if the selling company agrees to an exclusivity (“no shop”) agreement early in the process that limits its ability to speak with other potential buyers for a period of time. If and when exclusivity is ultimately granted, ideally it should be accompanied by a final price bump or other enhancements to the deal terms from the seller’s perspective.
It is often advisable for sellers to employ an auction or competitive bidding process to minimize the likelihood of the seller being boxed in by a bidder’s demand for exclusivity. By having multiple bidders, each bidder can be played off against the other to arrive at a favorable deal. Even if the reality is that there is only one serious potential bidder, the perception that there are multiple interested parties can help in the negotiations.
7. Interview and Hire a Great M&A Lawyer and a Great M&A Legal Team
It is critically important for a successful M&A process that the seller hire outside counsel who specializes in M&A transactions. All corporate attorneys purport to be able to handle M&A transactions, but only a specialist can bring the experience and expertise that a seller will need to negotiate the best outcome. The outside legal team should include not only seasoned M&A attorneys, but also experts in appropriate specialty areas (such as tax, compensation and benefits, employee matters, intellectual property, cybersecurity, data privacy, antitrust, international trade, and real estate).
M&A transactions involve complex, multifaceted agreements and deal structures, as well as challenging legal issues. They are typically fast-moving and can be contentious if not managed properly. To be effective, an M&A lawyer must be intimately familiar with both the business realities of M&A deals and the overall structure and inner workings of the acquisition agreement. He or she must have complete command of the applicable substantive law and market practice, and must be a skilled advisor, negotiator, and draftsperson. A significant M&A deal demands an experienced, focused outside M&A lawyer who has “been there, done that” many times and can bring to bear the right degree of judgment, wisdom, and practicality. It is very difficult to be effective as a “part-time” M&A lawyer.
The same holds true for the legal specialists required in M&A deals. Each specialist should be steeped in the M&A legal considerations relevant to the deal, and practice their specialty full time. Although it is tempting to resist bringing on a “large” legal team out of concern that they will generate a large legal bill, experienced specialists will actually save the seller money by identifying significant risks early in a transaction and working to develop practical solutions.
Moreover, the seller should expect that a sophisticated buyer will engage a full range of M&A legal specialists, putting the seller at a significant disadvantage if the seller is unwilling to include on the legal M&A team an equally experienced bench of specialists.
Ultimately you want legal counsel that will help you get to a closing quickly and efficiently with a minimum of risk. You don’t want legal counsel that only points out problems without potential solutions or, worse, lacks the expertise to identify and mitigate critical issues in the first place.
8. Consider Hiring an M&A Financial Advisor or Investment Banker
Although every transaction is different, generally an M&A financial advisor or investment banker experienced in M&A can bring significant value to the transaction on the seller’s behalf. Although some investors in privately held startups might question the cost-benefit aspect of engaging such an advisor, the value-add of such an advisor should be seriously considered, including the following assistance they can provide:
- Assisting the seller and its legal counsel in designing and executing an optimal sale process
- Helping to prepare decks, executive summaries, or confidential information memorandums for potential buyers
- Identifying and contacting prospective buyers
- Coordinating meetings with prospective buyers
- Preparing and coordinating the signing of confidentiality agreements
- Assisting the seller in properly populating the online data room
- Coordinating the seller’s responses to buyer due diligence requests
- Helping prepare management presentation materials for meetings with potential buyers and prepping the management team beforehand
- Assisting in the negotiations on price and other key deal terms
- Advising on market comparable valuations
- Helping the management team in presentations to the selling company’s Board of Directors
One tip here: the M&A financial advisor’s or investment banker’s form of “engagement letter” will likely be one-sided in favor of the advisor or banker, and will need careful review and negotiation. Experienced M&A counsel will be able to advise on market practice, especially as to economic terms, such as the fee proposed by the advisor or banker, and the circumstances under which it is payable.
9. Prepare a Good Form of M&A NDA
In M&A transactions, confidential and proprietary information (such as financial information and important contracts) often needs to be shared by the selling company with prospective bidders. It is critical that the selling company ensure that bidders are bound to protect the confidential information provided to them and not wrongly use or disclose to third parties to the selling company’s detriment.
One common way to help protect the secrecy of confidential information given to another party is through the use of a Non-Disclosure Agreement, also referred to as a “Confidentiality Agreement” or “NDA.”
Although it may seem like every buyer and seller has a “standard form” of NDA, like all contracts these agreements contain critical terms that should not be accepted as boilerplate; in the M&A context in particular, NDAs should contain a number of important provisions which protect the seller. Indeed, “standard” business NDAs usually omit significant terms that are common in M&A NDAs. Experienced M&A counsel will usually have ready a good form of NDA that a seller can propose to buyers.
The following discussion highlights a number of terms that require attention in an M&A NDA. Indeed, since an M&A NDA, unlike a non-binding letter of intent or a term sheet, is a binding contract, the seller needs to be alert for nonstandard provisions.
NDAs come in two basic formats: a one-way agreement or a mutual agreement. The one-way agreement is used when only the seller will be sharing confidential information with the buyer. The mutual NDA form is for situations where each side may potentially share confidential information, for example, where the acquisition consideration includes the buyer’s stock. Many times, a mutual NDA form that has been offered by the buyer, or that the seller has used for commercial relationships, is based on a business-oriented NDA that has not been tailored to the M&A context.
Although there is always some appeal to using a mutual form of NDA, selling companies should shy away from the mutual form if they are not planning to receive confidential information from the buyer. A one-way form enables the seller to more aggressively negotiate favorable NDA provisions without the buyer arguing that the seller should agree to the same obligations in the other direction. Also, a creditworthy buyer who will pay cash to acquire a seller typically will not share any of its confidential information with the seller, thereby making a mutual form of NDA unnecessary from the seller’s perspective.
A one-way NDA is geared to protecting the seller (as the disclosing party). The seller needs to keep in mind, however, that the buyer may seek to reduce its obligations as much as possible in the negotiation of the NDA.
NDAs don’t have to be long and complicated. In fact, well-drafted ones usually don’t run more than a few pages long.
The important elements of an NDA from the seller’s perspective include:
- Identification of the parties; this point is especially important when dealing with private equity sponsors
- Definition of what is deemed to be confidential
- The scope of the confidentiality obligation on the part of the buyer (non-disclosure and non-use of information except in connection with the potential transaction between the parties)
- The exclusions from confidential treatment (especially as to what the buyer might independently develop)
- Provisions governing the buyer’s right to disclose information required by law, regulation, or court-issued subpoena
- The obligation to return or destroy confidential information when requested by the selling company
- Limitations on the buyer’s ability to solicit the seller’s employees outside the context of the M&A transaction
- The term of the confidentiality and non-use covenants in the agreement
- Jurisdiction in case of disputes
- Right to injunctive relief in case of breach
- Disclaimers by the selling company
One final piece of advice here: sophisticated serial buyers typically prefer to use their own form of NDA, so be accommodating if you can. You don’t want to spend a week negotiating an NDA and fail to win any meaningful points, or set a contentious tone with the buyer that might imperil the M&A negotiations to the seller’s detriment. Again, experienced M&A counsel can help the seller identify what likely matters the most to both the seller and the serial buyer as a way of enabling the parties to reach agreement on the NDA without damaging the relationship between the seller and the buyer.
For a more detailed discussion, see Non-Disclosure Agreements for Mergers and Acquisitions.
10. Assemble Your M&A Negotiating Team
You want an M&A team that is not only experienced and expert, but also ready and aligned on negotiation strategy. This means first getting approval from the company’s Board of Directors to proceed on a specified M&A process, perhaps establishing an M&A Committee of the Board and deciding whether you will hire an M&A financial advisor or investment banker. The selection of experienced M&A legal counsel and accountants will also be important here.
The CEO’s role in an M&A process is hugely important. The CEO has the primary responsibility of selling the vision for the business and clearly articulating why the selling company is an attractive and growing business with sophisticated and differentiated technology, products, or services. The CEO must understand the fundamental legal and business issues that will arise and be able to make many judgment calls on those issues. The CEO also needs to keep the Board, the M&A Committee, and key investors informed at each stage of the process. Ultimately, a successful sale of the company depends upon the degree of the CEO’s involvement and commitment to the M&A process.
At the same time, the CEO is often put in a difficult and conflicting position: to be tough negotiating key terms of the deal, yet knowing that he or she is negotiating with a future employer and not wanting to be perceived as difficult. This problem is exacerbated if the buyer is a private equity sponsor offering the CEO and other members of management a piece of the post-closing equity.
Given the CEO’s dilemma, the selling company’s Board of Directors should consider forming an M&A Committee of the Board of Directors composed of independent directors to take the lead in the M&A process. Alternatively, the Board can utilize the selling company’s M&A financial or legal advisor (or both) to take the lead in negotiating the deal letter of intent/acquisition agreement. In each case, these process decisions will be important in determining the degree to which the CEO may act as a facilitator to get the deal done despite the conflict of interest he/she might face. Whatever process is employed, it needs to be fast and efficient, as time is the enemy of many M&A deals.
Copyright © by Richard D. Harroch. All Rights Reserved.
About the Authors
Richard D. Harroch is a Managing Director and Global Head of M&A at VantagePoint Capital Partners, a large venture capital fund in the San Francisco area. His focus is on internet, digital media, and software companies, and he was the founder of several internet companies. His articles have appeared online in Forbes, Fortune, MSN, Yahoo, FoxBusiness, and AllBusiness.com. Richard is the author of several books on startups and entrepreneurship as well as the co-author of Poker for Dummies and a Wall Street Journal-bestselling book on small business. He is the co-author of the 1,500-page book “Mergers and Acquisitions of Privately Held Companies: Analysis, Forms and Agreements,” published by Bloomberg Law. He was also a corporate and M&A partner at the law firm of Orrick, Herrington & Sutcliffe, with experience in startups, mergers and acquisitions, and venture capital. He has been involved in over 200 M&A transactions and 250 startup financings. He has acted as an M&A advisor to a number of Boards, companies, and CEOs. He can be reached through LinkedIn.
David A. Lipkin is an M&A partner in the Silicon Valley and San Francisco offices of the law firm of McDermott Will & Emery LLP. He represents public and private acquirers, target companies, and company founders in large, complex, and sophisticated M&A transactions, primarily in the technology and life sciences spaces, as well as working with startups and other emerging growth companies. David has been a leading M&A practitioner in the Bay Area for over 20 years, prior to that having served as Associate General Counsel (and Chief Information Officer) of a subsidiary of Xerox, and practiced general corporate law in San Francisco. He has been recognized for his M&A work in the publication “The Best Lawyers in America” for a number of years, and is the co-author of the 1,500-page book “Mergers and Acquisitions of Privately Held Companies: Analysis, Forms and Agreements,” published by Bloomberg Law. David is also a member of the Board of Directors of the Giffords Law Center to Prevent Gun Violence, and has served on additional educational and charitable boards. He has been involved in over 250 M&A transactions. He can be reached through LinkedIn.
Richard V. Smith is a partner in the San Francisco office of Orrick, Herrington & Sutcliffe LLP, and a member of its Global Mergers & Acquisitions and Private Equity Group and Capital Markets Group. He specializes in the areas of mergers and acquisitions, corporate and securities law, corporate governance, and activist and takeover defense. Richard has advised on more than 600 M&A transactions and has represented clients in all aspects of mergers and acquisitions transactions involving public and private companies, corporate and securities matters, corporate governance, and activist defense. He is the co-author of the 1,500-page book “Mergers and Acquisitions of Privately Held Companies: Analysis, Forms and Agreements,” published by Bloomberg Law. He can be reached through LinkedIn.