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.
Negotiating and Administering an Earnout: A Practical Guide
This guide takes an earnout from the letter of intent through the last payment, in the order the work happens. It explains how to decide whether an earnout is the right instrument at all, how to choose and define the metric so it survives integration, and how to convert vague efforts language into covenants a seller can actually enforce. It then covers the mechanics that decide who wins later: the sample calculation, the accounting hierarchy, the access and objection process, and the design of the independent accountant determination. The second half is administration—what the buyer should do from day one, what the seller representative should do when a statement arrives, and how to run an objection without destroying the relationship.
Merger Review Toolkit: HSR Filings, Second Request Responses, and Remedy Proposals
This toolkit supplies the working documents of a merger review, ordered by when they are used and weighted toward the pre-signing work where outcomes are decided. It opens with an overlap matrix, a document assessment protocol built around the themes agencies actually find, and an antitrust risk term sheet that translates those findings into the efforts covenant and reverse termination fee. It provides a reportability memorandum, a second request scope negotiation worksheet that fixes the budget, a review protocol, and a clean team protocol with the gun jumping rules business teams need. Later tools cover timing agreement terms, an economic submission outline, a customer outreach protocol, a divestiture package specification with upfront buyer criteria, a regulatory calendar covering the other reviewers, and a decree compliance calendar. Each item is annotated with the failure it prevents.
Merger Review and Second Requests: HSR Timing, Substantive Analysis, and Remedies
A second request turns a transaction into a litigation project, and most of what determines the outcome happens before anyone files. This article explains the substantive standard under Clayton Act Section 7, how the agencies actually analyze a merger—market definition, concentration, unilateral and coordinated effects, entry, and efficiencies—and how vertical and conglomerate theories differ from horizontal ones. It then covers the procedural machinery: the waiting period, the pull-and-refile device, what a second request demands and what complying with it costs, timing agreements, and the certification of substantial compliance that restarts the clock. It works through remedies and why structural divestitures are preferred, the litigation posture if no remedy is agreed, and the deal terms that allocate antitrust risk between buyer and seller. It closes with the documents that decide these cases and how to avoid creating the bad ones.
Merger Clearance Checklist: A Practical Checklist
This checklist runs a transaction through antitrust review from diligence to post-closing decree compliance, in the order the work happens. It opens with the overlap mapping and document assessment that should precede signing, because that is where outcomes are largely determined, then the risk allocation terms those findings should set. It covers reportability, the initial waiting period and the pull-and-refile device, and the second request scope negotiation that fixes the entire budget in three weeks. Later sections address the substantive campaign run in parallel, certification and timing agreements, gun jumping controls and the clean team protocol, remedy design with an upfront buyer, the litigation posture, and the other regulators whose clocks set the closing date. Closing sections cover witness preparation, running the business during review, divestiture execution, and decree compliance.
Managing a Merger Investigation: A Practical Guide
This guide runs a merger through antitrust review in the order the work happens, beginning during diligence where the outcome is largely determined. It covers the overlap mapping and document assessment that should precede signing, the risk allocation terms that follow from them, and the filing and initial waiting period including the pull-and-refile device. The heart of the guide is second request management: negotiating the custodian and date scope that drives the entire cost, agreeing the review protocol, running the substantive campaign in parallel rather than afterward, and certifying substantial compliance at the right moment. Later steps address timing agreements, remedy design with an upfront buyer, the litigation posture if no remedy is reached, gun jumping controls, the other regulators nobody scheduled, and closing. A running example follows one transaction through eleven months.
Management Rollover and Incentive Equity in Sponsor Deals: What the Team Actually Gets
In a sponsor buyout the management team is simultaneously a seller, a rollover investor, an employee, and the holder of an incentive award, and those four roles pull in different directions. This article explains what the team actually receives and what each piece is worth. It covers the rollover—whether it is taxable, what class of security it buys, and why rolling into the same instrument as the sponsor matters more than the percentage. It then works through the incentive pool: profits interests versus options versus restricted units, vesting on time and on return hurdles, and the tax elections that must be made within thirty days or not at all. The second half covers the provisions that determine whether the equity is ever realized—leaver definitions, call rights, transfer restrictions, drag and tag—and the parachute and deferred compensation rules that constrain the whole structure.
Management Equity Toolkit: Rollover Mechanics, Incentive Plans, and Employment Terms
This toolkit supplies the working documents for a management equity package: a rollover and incentive term sheet, an exit waterfall model that shows what each position is worth at three exit values, and a profits interest award agreement outline. It provides clause language in sponsor, management, and middle-position variants for the terms that decide value—the cause and good reason definitions, the leaver and call right structure, performance vesting mechanics with interpolation and distribution credit, and the drag-along limitations. It closes with an 83(b) filing protocol, a 280G timeline and waiver outline, a document review map, a team allocation worksheet, and an annual tracking sheet. Adapt everything to the transaction.
Management Equity and Rollover Checklist: A Practical Checklist
This checklist takes a management team through a sponsor transaction, item by item, in the order the decisions have to be made. It begins with engaging separate counsel and modeling three exit scenarios, then works through the rollover instrument and its tax treatment, the incentive pool's size and participation point, and the vesting mechanics that determine whether performance awards are ever earned. It then covers the leaver provisions and call rights where most value is lost, the employment agreement whose definitions must match, the elections and votes with hard deadlines, and the governance and equity-holder protections. Items that carry irreversible deadlines or that determine the outcome are flagged.
Making or Answering a Books-and-Records Demand: A Practical Guide
A books-and-records demand is won or lost in the drafting, and answered well or badly in the first two weeks. This guide covers both sides in sequence. For the stockholder it works through establishing standing, building the credible basis in the demand itself, stating a purpose that survives challenge, tailoring categories a court will actually order, and negotiating the conditions that determine whether the production is usable. For the company it covers the immediate preservation and board-briefing steps, the honest assessment of whether to produce, the scope negotiation, and the conditions worth insisting on. It closes with the summary proceeding, the phased-production approach that resolves most disputes, and the transition from production to complaint.
Leveraged Finance Toolkit: Commitment Letters, Covenant Packages, and Intercreditor Terms
This toolkit supplies the drafting material for a leveraged credit facility: commitment letter and certain funds condition language, market flex parameters, and a term sheet skeleton. It provides the clause language that decides restructuring outcomes—capped EBITDA add-backs, a sacred rights list that includes lien subordination, an unrestricted subsidiary blocker keyed to named assets, and a precise open-market-purchase definition—in buyer, lender, and middle-position variants. It then supplies intercreditor terms covering standstills, bankruptcy waivers, purchase options and credit bidding, a lender cooperation agreement outline, a post-closing tracker, a compliance certificate review sheet, and a consent request package. Adapt everything; the market moves and the drafting must move with it.
Legal Opinion Toolkit: Opinion Forms, Assumptions, Qualifications, and Backup Certificates
This toolkit supplies the drafting material for a closing opinion: a complete annotated opinion letter form, standard assumptions and qualifications with notes on what each does, and the security interest paragraphs with their exclusions. It provides an officer's certificate covering the facts the opinion rests on, a jurisdictional map worksheet, a local counsel reliance paragraph, and a no-litigation factual confirmation. It closes with a negotiation response table for the requests that recur, an internal knowledge sweep email, an opinion committee memorandum outline, a diligence checklist keyed to each opinion paragraph, and a backup file index. Every item is a starting point to be adapted, and departures from a firm's own form should be documented.
Launching or Listing a Digital Asset: A Practical Guide
This guide walks through launching a digital asset or listing one, in the order the work actually has to happen—which is not the order companies usually attempt it. It starts with the money transmission determination that carries criminal exposure and takes the longest to remediate, then the entity and treasury structure, and only then the transaction-by-transaction securities analysis. Later steps cover choosing a distribution structure, drafting disclosure that will be read by hostile readers, the communications policy that governs the single largest category of adverse evidence, lockups and the resale problem, and the launch itself. Separate steps give the intermediary's version: building a listing committee that functions as a legal control, designing custody so customers are owners rather than creditors, and running the ongoing monitoring that keeps a listing decision defensible. A running example follows a protocol company and a trading venue.