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Brown Moskowitz & Kallen Represents SAFE-COM Wireless in Sale to Global Emergency Communications Leader AVIRE

Brown Moskowitz & Kallen, P.C. recently represented SAFE-COM Wireless LLC, a New Jersey-based designer and manufacturer of mission-critical distributed antenna and sensor systems, in its sale to RATH™ Communications, a subsidiary of AVIRE, a global leader in emergency communication and safety solutions, with locations in Europe, North America, and Australia.

Based in Holmdel, New Jersey, SAFE-COM Wireless designs and manufactures Emergency Responder Communication Enhancement Systems (ERCES). Their innovative solutions, such as bi-directional amplifiers and fiber optic distributed antenna systems, play a critical role in keeping first responders connected during emergencies. SAFE-COM Wireless attenuators enable local police and other first responders to communicate with a property in an active crisis via the most integrated in-building radio communications and sensor systems ever introduced, elevating response safety. As part of RATH™ Communications, the strategic acquisition of SAFE-COM Wireless enhances AVIRE’s comprehensive range of emergency communication solutions and strengthens its service to customers across North America.

Stuart M. Brown, Partner and Co-Chair of the Commercial Transactions practice, and Justin Escher Alpert, Senior Counsel, represented SAFE-COM Wireless in the transaction.

Brown Moskowitz & Kallen has brought business acumen to legal representation for more than 25 years, leading complex mergers and acquisitions for privately held clients with local, national, and international business interests.

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Jan 16, 2025
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The Mandatory Reporting of Beneficial Ownership Information is on “Hold” Again! The Appellate Court Reinstates the Nationwide Injunction “Pausing” All Reporting Under The Corporate Transparency Act

By Linda R. Brower, Esq., Senior Counsel, Commercial Transactions

What Happened

In the same week, the Fifth Circuit Court of Appeals both lifted, and then reinstated, the temporary injunction halting enforcement of The Corporate Transparency Act (Act) and its reporting requirements.

On December 23, 2024, a three-judge panel (the “motion panel”) of the Fifth Circuit Court of Appeals granted the government’s emergency motion to reverse a lower District Court’s decision to impose a nationwide injunction against enforcement of the Act. The motion panel held that the government had met its burden to demonstrate the likelihood of success on the merits that the Act is constitutional. As a result of this decision, the government immediately extended the reporting deadlines under the Act for a brief period, adjusting most of them to January 13, 2025.

At the same time, the plaintiffs in the underlying case petitioned the same appellate court for an emergency hearing en banc – a hearing by a panel consisting of a greater number of judges (a “merits panel”). Plaintiffs asked the merits panel to reverse the decision lifting the injunction made by the motion panel.

On December 26, 2024, the merits panel did just that. It reversed the decision of the motion panel, the effect of which was to reimpose the nationwide “pause” in enforcing the Act and to suspend the new reporting deadlines for all reporting entities under the Act. The merits panel said it was reimposing the injunction to “preserve the constitutional status quo” so that the Fifth Circuit Court would have sufficient time to consider the parties’ “weighty substantive arguments.” The merits panel decided that forcing plaintiffs to comply with the Act now would unfairly prejudice their claims, even if they were to ultimately lose on the merits of their claims. Thus, for now, the government is enjoined from enforcing the Act and there are no reporting deadlines in place. Voluntary reporting under the Act continues to be permitted and has never been halted at any time during consideration of the issues by the prior courts in the case.

The Fifth Circuit has set an expedited briefing and hearing schedule in the case for early in 2025. Oral argument is now scheduled for March 25, 2025, after which the Fifth Circuit appellate court will issue its final decision on the constitutionality of the Act.

What’s Next

Currently, there is no obligation for reporting companies to report under the Act. This applies to all reporting under the Act, not just the filing of initial reports. Therefore, regardless of when a reporting company was formed, no initial, updated or corrected reports have to be filed now.

Reporting companies should continue to monitor the News section of the BMK website for information and updates about the status of the underlying case in the Fifth Circuit Court of Appeals as well as for updates about the Act and its reporting requirements. We will continue to monitor developments under the Act and report on them as they occur.

This communication is not a full analysis of the matters presented and should not be relied upon as legal advice and could be considered attorney advertising.

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Dec 26, 2024
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The Injunction “Pausing” Reporting Under the Corporate Transparency Act Is Overturned. Mandatory Reporting of Beneficial Ownership Information is “On” Again!

By Linda R. Brower, Esq., Senior Counsel, Commercial Transactions

What Happened

On December 23, 2024, the Fifth Circuit Court of Appeals lifted the preliminary injunction imposed by a U.S. District Court in Texas earlier in the month that had stopped all required reporting under The Corporate Transparency Act (the Act).

On December 3, 2024, a U.S. District Court in Texas, in a first-of-its-kind ruling under the Act, issued a nationwide preliminary injunction “pausing” all mandatory reporting by reporting companies under the Act, after finding that plaintiffs in the case had demonstrated a likelihood that the Act was unconstitutional.

The Department of Justice (DOJ) took an emergency appeal to the Fifth Circuit Court, requesting an emergency stay of the lower court’s injunction order pending a final decision of the merits of the case which could take months or longer to resolve. After an expedited briefing schedule, the Fifth Circuit Court lifted the injunction against enforcement of the Act on December 23, 2024, finding that the DOJ had met its burden to demonstrate the likelihood of success on the merits that the Act is constitutional.

What’s Next

Immediately following the decision by the Fifth Circuit Court of Appeals, FinCEN issued a Press Release and a revised schedule for entities subject to the Act to file their required Beneficial Ownership Information Reports (BOI Report).

FinCEN issued the following information and filing extensions for initial BOI Reports:

  • For reporting companies existing prior to January 1, 2024, the filing deadline is now January 13, 2025, instead of January 1, 2025;
  • Reporting companies created or registered in the United States on or after September 4, 2024, that had an initial filing deadline between December 3, 2024 and December 23, 2024, now have until January 13, 2025, to file their initial BOI Reports;
  • Reporting companies created or registered in the United States on or after December 3, 2024, and on or before December 23, 2024, have an additional 21 days from their original filing deadline to file their initial BOI Reports;
  • Reporting companies that qualify for disaster relief may have extended deadlines that fall after January 13, 2025, and their initial filing deadline is now extended to whichever deadline is later;
  • Reporting companies that are created or registered in the United States on or after January 1, 2025, have 30 days to file their initial BOI Reports (after receiving actual or public notice of effective creation or registration).

The Press Release did not address reporting companies that are created or registered in the United States on or after December 24, 2024 through December 31, 2024. Accordingly, we presume that these companies should report within 90 days of the notice of effective formation/registration in accordance with the Act’s original reporting requirements.

No extension was announced for entities formed on or after January 1, 2025. These reporting companies will have 30 days from notice of effective formation/registration to file initial BOI Reports in accordance with the Act’s original reporting requirements.

For further information about the Act and its reporting requirements, please refer to the News and Resources sections of our website. We will continue to monitor developments under the Act and report on them as they occur.

This communication is not a full analysis of the matters presented and should not be relied upon as legal advice and could be considered attorney advertising.

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Dec 24, 2024
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News Alert: Texas Federal District Court Pushes Nationwide “Pause” Button On Corporate Transparency Act Reporting

By Linda R. Brower, Esq., Senior Counsel, Commercial Transactions

The Background

The BMK Corporate Group has previously written in this space about The Corporate Transparency Act (the Act) as a topic of interest to clients and friends of the firm. We write now to update you regarding a new development under the Act and its reporting requirements — specifically, the Beneficial Ownership Information Reporting Rule (BOI Reporting Rule.

Recall that the Act was intended to expose, and thus deter, shell companies engaged in illegal activities, including terrorist financing, money laundering and tax fraud. The Act requires that companies subject to the Act and their “beneficial owners” must report sensitive information, including names, addresses, birthdays and drivers’ license or passport identification numbers.

What Happened

On December 3, 2024, in a first-of-its kind ruling under the Act, the U.S. District Court for the Eastern District of Texas issued a nationwide preliminary injunction “pausing” the reporting requirements for all reporting companies (not just plaintiffs in the case).  The result of the ruling is to prohibit the federal government from continuing to enforce the Act and its BOI Reporting Rule until further court action stays, overturns or modifies the injunction.

The Texas federal district court determined that the plaintiffs in the case had demonstrated the likelihood that they would prevail on the merits of their claims that the Act was unconstitutional and exceeded Congress’s power to enact. The U.S. Department of Justice (DOJ) already filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit on December 5, 2024.  The  DOJ’s first move will likely be to seek a stay of the lower court’s preliminary injunction (and let the BOI Reports continue to be filed) while the DOJ appeals to the Fifth Circuit on the merits of the case on an expedited basis (i.e., to allow for an expedited hearing on the parties’ opposing contentions).

What This Means For Reporting Companies

In short, at least for now, companies that are subject to the Act and the BOI Reporting Rule are not required to submit beneficial ownership reports to FinCEN. For those companies subject to the Act that have not yet filed an Initial Report, it would be best to continue to be prepared to file the BOI Report. It is still possible that pre-2024 reporting companies will be required to file by the original deadline of January 1, 2025.  The FinCEN reporting portal is still open and accepting BOI Reports for filing.

For pre-2024 reporting companies that have already filed initial BOI Reports, monitor the media for reports that the information submitted in initial BOI Reports is going to change. It is certainly in line with FinCEN’s responsibility that it will be issuing further guidance to reporting companies in the extremely near future on this subject.

This communication is not a full analysis of the matters presented and should not be relied upon as legal advice and could be considered attorney advertising.

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Dec 11, 2024
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New Jersey Appellate Division Upholds Decision in Favor of BMK Client; Court Affirms “Pay-When-Able” Loan Agreements as Enforceable

Friends and family members routinely loan each other money — at times considerable sums of money — for working capital or for other needs on the basis that the trusted borrower will repay the loan as soon as he or she is able to do so. A recent New Jersey Appellate Division decision has affirmed that these informal loans are enforceable in New Jersey.

Brown Moskowitz & Kallen’s Kenneth L. Moskowitz and Michele-Lee Shapiro recently represented a lender who made a pay-when-able loan in a very substantial amount to a close friend who was in desperate need of funds to keep his diverse business interests afloat. In August 2023, on plaintiff-lender’s action to enforce repayment of the loan, a Bergen County Superior Court entered Final Judgment in favor of the plaintiff. The trial court held that pay-when-able loans are legally enforceable in New Jersey and that the plaintiff’s cause of action accrued when the defendant admitted to plaintiff his ability to repay the loan. The trial court’s 63-page opinion was replete with findings that the defendant’s testimony was not credible, and the court rejected all of defendants’ arguments seeking to avoid repayment of the loan.

On November 19, 2024, the New Jersey Appellate Division affirmed the Superior Court’s decision in a unanimous opinion, holding that pay-when-able loans are “valid and enforceable in New Jersey.” The appellate court affirmed the trial court’s enforcement of plaintiff’s pay-when-able loan.

Should you have any questions concerning pay-when-able loans or other business disputes, we would be happy to speak with you at any time.


Kenneth L. Moskowitz is the Chair of the Litigation Department at BMK, and Michele-Lee Shapiro is Senior Counsel in the firm’s litigation group. Ken and Michele-Lee represent clients in a broad range of business disputes in state and federal courts, as well as in arbitration.

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Nov 22, 2024
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Benjamin L. Roth Joins Brown Moskowitz & Kallen as Associate Attorney

Benjamin L. Roth has joined Brown Moskowitz & Kallen, P.C. as an associate attorney. At BMK, Mr. Roth is engaged in a diverse practice offering counsel related to business formation, organization and capitalization, as well as with respect to certain litigation matters for clients of varying sizes across many industries.

In the BMK corporate business practice group, he is involved in client matters that encompass every stage of the business life cycle. This includes structuring partnerships and joint ventures, assisting in the resolution of shareholder issues, and the preparation of documentation related to mergers and acquisitions. He is also active in BMK’s litigation and dispute resolution practice, working on an array of matters.

Before joining BMK, Benjamin Roth held Associate Attorney posts with two other New Jersey law firms, earning experience in insurance fraud, intellectual property infringement, and commercial litigation. He earned a Bachelor of Arts cum laude from Binghamton University, with concentrations in English and Philosophy, Politics, & Law before graduating from Fordham University School of Law. He is admitted to practice in the State of New Jersey.

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Nov 20, 2024
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Understanding Whether, and When, to File a Beneficial Ownership Information Report – Part 2

By Linda R. Brower, Senior Counsel, Commercial Transactions

In Part 1 of this Article, we addressed FinCEN guidance on whether and when a reporting company formed or registered prior to December 31, 2023, and still in existence on or after January 1, 2024, was required to make initial and update reports about the company and its beneficial owners. In Part 2, we discuss the filing requirements for reporting companies formed or registered on and after January 1, 2024, and whether FinCEN guidance issued on September 10, 2024, clarified a grey area about requiring an update report for “any change” but not requiring one for a change due to “termination and dissolution.” Again, for 2024 and Post-2024 reporting companies, as it did for Pre-2024 reporting companies, FinCEN differentiated between the filing requirements for initial and updated reports.

What became clear in September 2024 about the filing requirements for 2024 and Post-2024 reporting companies.

FinCEN issued new FAQ guidance on September 10. In the guidance, FinCEN seems to have clarified most dangling issues. With respect to filing initial reports, we already knew from the Act that a reporting company formed or registered at any time in 2024 has a 90-day reporting deadline (from the date of notice of formation or registration) and that reporting companies formed or registered on or after January 1, 2025, have a 30-day reporting deadline. But, for the first time, on September 10, FinCEN clarified that if a reporting company ceases to exist as a legal entity within the 30- or 90-day deadline (whichever applies) it, nevertheless, must still file an initial report by its reporting deadline. FinCEN FAQ C.14 issued September 10, 2024.

With respect to update reports, we already knew from FinCEN’s “Note” that reporting companies are excused from having to file update reports for a company’s “termination or dissolution.” Prior to September 10, FinCEN had not clarified whether the “termination or dissolution” status was the same or different from what FinCEN described as a company “ceasing to exist” in its July 2024 FAQ. In the September set of FAQs, we learned that FinCEN considers them equivalent. FinCEN FAQ C.13 issued September 10, 2024.

In FAQ C. 14, issued on September 10, 2024, FinCEN meaningfully, but only implicitly, elevated its prior standard of “termination and dissolution” to what it now refers to as a company “ceasing to exist” and gave examples. In September 2024, FinCEN clarified that the ultimate “change” — one resulting in the reporting company “ceasing to exist” — is not a reason to file an update report.

In the weeks since the September 10 guidance was issued, legal commentators and practitioners appear to have already accepted without question that there is no update required to report that a company has “ceased to exist” and that the standard is identical to a company’s termination or dissolution.

We believe, with only a kernel of lingering doubt however, that FinCEN clarified in the September FAQs that there remains a requirement to report “lesser” changes to previously-reported required information, such as interim changes in a reporting company’s beneficial ownership immediately, prior to dissolution or termination, as sometimes happens in finalizing liquidation events such as a merger, acquisition or business bankruptcy. Do such interim “changes,” short of a company achieving the “ceasing to exist” standard, still trigger the requirement to file an update report no later than 30 days after the date the change occurred?

BMK will continue to monitor FinCEN guidance updates and amendments to the Act for additional clarification of this, still possibly, unsettled issue. Until then, we believe that interim changes that do not rise to the level of a reporting company “ceasing to exist” should still be reported within the update deadlines. From a policy position, this result makes sense. Prior to termination or dissolution, FinCEN wants to know the beneficial ownership of a reporting company, even if it is immediately prior to the last moment of its “life.” However, FinCEN does not want its database cluttered with what would be meaningless notices about a reporting company’s actual demise.

If you have any questions regarding how this new FinCEN guidance affects your reporting compliance obligations, please contact the author or another member of the Corporate Group at Brown, Moskowitz & Kallen, P.C.

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Nov 11, 2024
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Understanding Whether, and When, to File a Beneficial Ownership Information Report – Part 1

By Linda R. Brower, Senior Counsel, Commercial Transactions

As we have turned the page on summer and now make a mad dash through fall, the first major deadline under the Corporate Transparency Act (the Act) since its effective date (January 1, 2024), is quickly approaching: Companies subject to the Act and formed or registered prior to and still in existence on January 1, 2024, have until December 31, 2024, to file an initial report under the Act. The Act requires “reporting companies,” to file with the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) information about the company and the individuals in “substantial control,” or that own 25 percent or more, of the equity unless an exemption applies. Disclosures under the Act are aimed at combatting financial crimes.

Reflecting on just a few of the many important questions related to the Act that have been raised by our clients since the Act’s implementation earlier this year, the question whether, if at all, and when, a reporting company has to file an initial report and under what circumstances it has to report changes in its ownership structure, up to and including the point of formally and irrevocably dissolving, is at the top of the list.

Because knowing the correct answer to these questions ensures that reporting companies avoid liability under civil fines and possible criminal imprisonment, we have created a two-part guide. In Part 1, we examine the filing requirements for an initial report and update reports for Pre-2024 reporting companies. In Part 2, the filing requirements for initial and update reports for 2024 and Post-2024 reporting companies are addressed, and so is FinCEN’s attempt to clarify what “changes” to a reporting company’s ownership trigger the filing of an update report.

What was clear prior to September 2024 about the filing requirements for Pre-2024 reporting companies.

With respect to filing initial reports. The Act mandates that a reporting company formed or registered on or before December 31, 2023, and in existence on January 1, 2024, is required to file its initial report any time on or before the December 31, 2024, reporting deadline. This is true no matter what — even if the company subsequently (on or after January 1, 2024) ceases to exist as a legal entity before December 31, 2024, or otherwise alters its ownership structure (as would a transitory entity only formed to facilitate a merger or other liquidation event). FinCEN FAQ C.12, C.13 (issued July 8, 2024).

Related to the first point, according to the Act, a company never becomes a reporting company, and is not required to file an initial report, if it ceases to exist as a legal entity on or before December 31, 2023. Pursuant to FinCEN guidance issued in mid-summer 2024 we knew that the term “ceased to exist” has a special meaning. FinCEN guidance made clear that a reporting company “ceases to exist” only after all the following occurs: it winds up its affairs (i.e., closes all bank accounts and fully liquidates its business), ceases to conduct business, and “entirely complete[s] the process of formally and irrevocably dissolving.” FinCEN FAQ C.13 issued July 8, 2024.

To meet the third requirement, the company must have complied with the state laws in which it was formed or registered by having filed for and received confirmation of dissolution (usually after payment of all final fees and taxes). An “administrative” suspension or dissolution that the states sometimes issue because a company failed to pay a filing or annual report fee do not satisfy the high standard that is needed for a company to complete the “formal and irrevocable dissolution” process.

With respect to filing update reports. Before September 2024, FinCEN guidance clarified that “any change” to previously-filed required information must be updated no later than 30 days after the date the change occurred. FinCEN’s Small Entity Compliance Guide, December 2023, Chapter 6.1 at page 45 (the Compliance Report). The Compliance Report provided examples of what constitutes changed information. FinCEN also added, without explanation, in a nondescript “Note” that “[t]here is no requirement to report a company’s termination or dissolution.” Compliance Report at page 46. So, as a result, we know that the “ultimate” kind of “change” –termination or dissolution — is exempt from filing an update report. To be clear, there is no place on the official FinCEN form to even report a company’s dissolution or termination.

After the July 8, 2024, FinCEN guidance, however, we were left hanging whether FinCEN considered the “termination or dissolution” standard referred to in the Compliance Report to be the equivalent of a reporting company having “ceased to exist.” On September 10, 2024, FinCEN issued additional guidance on this issue. This issue and others are addressed in Part 2.

If you have any questions regarding how this new FinCEN guidance affects your reporting compliance obligations, please contact the author or another member of the Corporate Group at Brown, Moskowitz & Kallen, P.C.

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Nov 04, 2024
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BMK Represents Music Education Industry Company in Strategic Sale to P.E.-Backed Acquirer

Brown Moskowitz & Kallen, P.C. recently served as lead counsel to a prominent provider of musical instruments to primary and secondary school students (the “Company”) in an all-cash sale to a private equity-backed strategic acquirer.  The incumbent management will be providing transition services to the acquirer.

The transaction, which equips the Company with expanded operating capital to further grow both its regional and national market penetration and cross-pollinate its sales opportunities with the acquirer’s customer base, was completed on an accelerated schedule to capitalize on certain strategic dates. The transaction began in earnest in early July 2024 and closed on August 13, 2024.

The BMK team was comprised of Stuart Brown and Norman Kallen, Partners and Co-Chairs of the BMK Commercial Transactions practice group, as well as Karen Hirschfield and Linda Brower.

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Oct 01, 2024
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The M&A Transaction Team: A Four-Legged Stool

By Norman D. Kallen, Partner and Co-Chair of the Commercial Transactions Practice

To create a successful exit strategy via mergers and acquisitions, a collaborative alliance among legal advisors, investment bankers, and tax professionals is vital. These advisors, together with the principals of the target company, create the four legs of a stool that comprise the essential elements of an M&A transaction. This article will briefly elaborate on the distinct and indispensable roles played by each professional group, underscoring how their collective and coordinated efforts form a comprehensive approach to navigating the intricate challenges inherent in M&A transactions.

Investment bankers assume a pivotal role in shaping the financial contours of an M&A transaction. Their expertise in deal structuring and financial analysis are instrumental in maximizing the value derived from the sale. They (should) bring a deep understanding of a company’s financials, industry dynamics, and market trends. They create the strategic approach necessary to align the objectives of both buyers and sellers. Beyond financial engineering, they act as negotiators and intermediaries, managing relationships, facilitating negotiations, and ensuring mutually beneficial deal terms. It is exceptionally difficult for sellers to negotiate their own transaction. As a result, the investment banker’s strategic guidance, rooted in analysis of market conditions, valuation strategies, and potential synergies, contributes to a robust and tailored sale strategy. Collaboration with legal advisors ensures a complete approach addressing both financial and legal considerations.

Legal advisors, particularly those with specialized M&A experience, provide a crucial influence in shaping the framework of a company sale transaction. Their expertise spans a comprehensive understanding of regulations including antitrust, securities, and corporate governance, ensuring compliance throughout the transaction. Moreover, attorneys understand and are tasked with handling the legal aspects of due diligence. They conduct thorough reviews to identify potential legal risks, and ensure the buyer comprehensively understands the target company’s legal standing. Most importantly, they are essential in proactively working with the seller, prior to closing and throughout the M&A process, in attempting to minimize those risk elements that will impact the seller’s enterprise value. M&A attorneys adroitly navigate the delicate processes of crafting and negotiating contracts, bringing forth a wealth of knowledge in structuring agreements aligned with the deal’s strategic objectives.

Tax professionals, including accounting and legal professionals, bring a unique and critical expertise to M&A transactions, assisting and advising in structuring deals to minimize tax liabilities for both sellers and buyers. Their involvement is crucial as tax implications can significantly impact the overall financial outcome of the transaction — for all parties. Collaborating with legal counsels, investment bankers, and tax professionals contributes to the strategic planning of the deal by identifying opportunities for tax optimization. Mitigating tax risks is a vital function of tax professionals, involving comprehensive due diligence to assess tax implications, identify potential liabilities, and develop strategies for their resolution.

Last, but not least, is the owner of the seller and his/her key personnel who will be provided with knowledge of and participate in the transaction. These people include the owner’s chief financial officer or controller, who will tasked with providing financial and tax information to the buyer, and possibly, the seller’s HR professional, who will provide employee and benefits information and assist with the post-closing transition of personnel (and culture). Although there is always the need to keep the knowledge of the potential transaction “close to vest,” without certain key employees becoming part of the process, the burden on the business owner in running the business at the same time he/she is negotiating the transaction and responding to the buyer’s information requests can be suffocating.

The selection of professionals with specialized expertise in M&A transactions — legal advisors, investment bankers, and tax professionals — together with the owner and his/her key personnel, is pivotal for the success of a company sale transaction. Recognizing the collective value of engaging the right professionals becomes a strategic imperative as companies embark on the journey of selling. Knowledge of the M&A process brought to a transaction by qualified professionals along with their industry insights, and strategic guidance all enhance likelihood of a successful company exit, navigating its intricate path with dexterity and precision. Equally important, their experience brings calm to what otherwise is, generally, a very emotional exercise for the seller.

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Sep 27, 2024
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We look forward to speaking with you.