Corporate Insights
Analysis and practical guides on corporate.
174 articles, checklists, and guides on corporate law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Selling a Company to an ESOP: A Practical Guide
This guide walks a company owner and counsel through an ESOP sale in the order the work happens, from the feasibility question that should precede everything to the plan administration that runs for decades. It covers the honest downturn-case analysis that determines whether the structure can work, the trustee and appraiser selection that the seller must not control, the diligence and valuation process, and the negotiation whose absence is the defect regulators look for first. Later steps address structuring the debt and any warrants, the section 1042 election and the S corporation conversion, the section 409(p) analysis that must precede the warrant terms, closing mechanics, and the employee communication that determines whether the transaction is understood as promised. Final steps cover the repurchase obligation, ongoing fiduciary work, and responding to an investigation. A running example follows one owner through the process.
Securities Disclosure Toolkit: Policies, Blackout Calendars, and 10b5-1 Plans
Working templates for the public company disclosure function. It includes a disclosure committee charter, a sub-certification questionnaire, a one-page Form 8-K trigger protocol, a materiality assessment memorandum format, a Regulation FD policy with a remediation protocol, an insider trading policy with windows and pre-clearance, a pre-clearance request and approval form, a 10b5-1 plan adoption checklist and certification, a blackout notice, an annual disclosure calendar, a restatement response plan, and a risk factor review worksheet. Each carries drafting notes on what the document is for and where programs commonly fail. Adapt everything to the company, the exchange, and current requirements.
Running or Responding to a Tender Offer: A Practical Guide
Running a tender offer is a logistics exercise wrapped around a legal one, and the logistics are what fail. This guide walks the bidder's side from pre-commencement preparation through commencement, extensions, expiration, acceptance, and the back-end merger, identifying the third parties whose lead times control the timetable. It then walks the target's side: the first forty-eight hours, the ten-business-day clock for the Schedule 14D-9, the board's decision architecture under enhanced scrutiny, and the defensive tools that remain available. It covers the negotiated two-step transaction, now the most common use of the structure, and the mechanics that make a five-week close possible. Worked timetables for both hostile and friendly offers are included.
Running a Sale Process That Survives Review: A Practical Guide for Boards
A step-by-step operational guide for a board selling the company, written for directors and the lawyers advising them. It runs from the first unsolicited approach through committee formation, advisor selection, the market check, negotiation, deal protections, the proxy, and the vote, explaining at each step what a reviewing court will look for. Separate parts cover controller transactions and the MFW sequence, management conflicts, appraisal exposure, and the documentation that carries the record. It includes a worked sale process with named parties, a realistic calendar, budgets, and the mistakes that convert a clean deal into years of litigation. The organizing principle is that the standard of review is chosen by process decisions made in the first two weeks.
Running a Public Company Disclosure Program: A Practical Guide
A step-by-step operational guide to building and running the disclosure function of a public company, written for general counsel, securities counsel, and the finance leaders who share the work. It covers the disclosure committee and its charter, the sub-certification process that supports the officer certifications, the Form 8-K trigger protocol and escalation paths, documented materiality assessments, the earnings and guidance process, Regulation FD controls, insider trading policy administration including 10b5-1 plans and Section 16, and the annual calendar. Separate parts address what to do when something goes wrong, restatements and internal investigations, and the first ninety days for a newly public company. It includes worked scenarios, budgets, and staffing.
Restricted Securities Resale Checklist
A restricted stock sale clears or stalls on a defined set of facts, and this checklist collects them. It runs the document assembly that must precede any analysis, the affiliate determination that drives every other condition, the holding period and tacking chain, and the disqualifier checks that are most often skipped. Separate sections cover the affiliate's volume, manner-of-sale, and filing obligations, the representation letters and opinion, and the transfer agent process. It also covers the alternatives when Rule 144 will not work, the contractual restrictions that usually bind longer than the securities laws, and the issuance records practice that prevents the whole problem.
Responding to an Activist Campaign: A Practical Guide
This guide runs an activist campaign from the surveillance signal through the settlement or the vote, in the order events occur and on the schedule the activist sets. It starts with preparedness—the register, the annual self-assessment through activist eyes, the bylaw review, and the response team named before anyone needs it—because that work determines the outcome. It then covers the first seventy-two hours, the honest substantive assessment the board must make in private, the nomination notice and whether to challenge it, and the vote model built holder by holder. Later steps address institutional and proxy adviser engagement, settlement terms and the test for whether to settle, defensive measures and the scrutiny they attract, running a contest to a vote, and living with an appointed director afterward. A running example follows one company through six months.
Responding to a Cartel Investigation: A Practical Guide
This guide runs a criminal antitrust matter from the first signal through the follow-on civil litigation, in the order events occur and under the time pressure they actually create. It begins with the four ways an investigation starts and the first forty-eight hours that determine whether evidence survives and whether the company is first in line. It covers the leniency marker decision made on incomplete facts, the parallel global applications that must go out the same week, the internal investigation with separate counsel for individuals, and the joint defense agreements that constrain later cooperation. Later steps address plea negotiation and the volume of affected commerce that drives everything, ACPERA cooperation with the plaintiffs suing you, suspension and debarment for contractors, and the remediation that follows. A running example follows one company through a four-year matter.
Reselling Restricted Securities: Rule 144, Regulation S, and the Exemptions That Move Stock
Every private placement creates a problem that must be solved later: the securities cannot be freely resold, and the buyer eventually wants out. This article explains the resale framework, beginning with the statutory question of who is an underwriter and why that single definition drives everything. It works through Rule 144's safe harbor in detail—the holding periods and when they tack, the current public information condition, the volume and manner-of-sale limits that apply only to affiliates, and the shell company trap that suspends the rule entirely. It then covers the alternatives: the Section 4(a)(1½) private resale, Regulation S offshore sales, and registered resales on a shelf. It closes with legend removal, the transfer agent's role, and the opinion practice that actually moves the shares. Worked examples follow an affiliate, a fund, and a founder through their respective exits.
Resale Toolkit: Rule 144 Analyses, Seller Representation Letters, and Legend Removal Requests
This toolkit collects the documents that move restricted stock, each annotated with the point at which it usually fails. It provides a Rule 144 analysis worksheet that forces every fact into the open, an affiliate determination memorandum, and a volume computation worksheet for affiliates. It then supplies the package itself: a seller's representation letter, a broker's representation letter, a legend removal request, a counsel opinion form, and a transfer agent instruction. For situations Rule 144 cannot handle it provides private resale representations and a registration rights demand notice. An issuance ledger template closes the set, because the whole problem is preventable at issuance.
Representations, Warranties, and Indemnification in Acquisition Agreements: Where the Money Actually Moves
The purchase price in an acquisition agreement is a headline number, and the indemnity package is what determines how much of it the seller keeps. This article explains how representations, disclosure schedules, survival periods, baskets, caps, escrows, and insurance fit together as a single risk-allocation system, and what each term is actually pricing. It covers the materiality scrape, sandbagging, the fraud carve-out and the exclusive remedy problem, the material adverse effect standard that Delaware courts have applied so demandingly, and how representation and warranty insurance changed the negotiation. It closes with a term-by-term account of what a well-negotiated package looks like from each side of the table and where deals most often go wrong after closing.
Pursuing or Defending an Appraisal Claim: A Practical Guide
An appraisal case has two entirely separate phases, and lawyers lose them for entirely separate reasons. The first is perfection, a mechanical sequence of demands and deadlines administered by brokerage back offices, where a single error is unfixable. The second is a valuation trial in which two experts build competing models and a judge decides which one describes reality. This guide walks both phases in order, from the decision whether to dissent through the demand mechanics, the petition, discovery aimed at the buyer's synergy files, expert selection, and the trial itself. It covers the respondent's side with equal attention, including the prepayment mechanism that caps interest exposure and the de minimis defenses that end cases early. It closes with the settlement dynamics that resolve most petitions before a judge ever sees a model.