Author Archives BMK Law

By Justin Escher Alpert

Due diligence is an art. It is a coordinated dance between skilled practitioners in creatively bringing Mergers and Acquisitions transactions together.

In a large public transaction, bankers and lawyers on each side will throw dozens of young associates on a project to develop disclosure schedules that are cross-checked over-and-over again. Money is no object in a $50 billion dollar transaction, but peel it back by several orders of magnitude, and whether your transaction is worth $500,000, $5 million, or $50 million, the due diligence process is still vitally important.

The buyer will obviously want an idea of what exactly it is buying, whether it be assets or securities. For the seller, the due diligence process is important to develop the disclosure schedules that will keep the seller’s representations and warranties in the purchase agreement accurate. In a good and complete due diligence process, it shouldn’t surprise the seller to discover things that it did not know about itself.

Due diligence is never perfect and you don’t know in advance what you will find. In a recent strategic acquisition, a large family business purchased a simple cash-flow generating company which the sole proprietor basically ran out of his head for thirty years. Contracts were mostly oral in an industry based on old school ties and firm handshakes. The due diligence process had to make the buyer comfortable with what it was getting, with representations and warranties that would match its understanding.

In another strategic acquisition, the buyer definitively told his attorneys to just paper the contracts because he knew that the seller had run a good business for years. Of course, the due diligence process would continually turn up issues which would then need to be resolved by the parties and their professional advisors. Your professional advisors are there to ask good questions, spot issues, and protect your interests as you make informed decisions.

It is not always just the seller who is forced through the due diligence introspection. If the seller is taking an earn-out over time or rolling-over part of the purchase price into buyer equity, it is important to know that the buyer will be able to continue operating as a going concern. A proper due diligence of the buyer becomes important. If the buyer is just a shell company, guaranties may be needed from a parent entity.

In all of these scenarios, getting beyond the terms of a letter of intent and into the details is vitally-important. In the corporate mating ritual, issues arise and the professional intermediaries are in a position to sort them out in a manner that crafts a common sense understanding, guiding a transaction towards closing. On larger transactions, it is not uncommon to hear from sellers that the due diligence process is “like drinking from a firehose.” There can be a tremendous amount of work that needs to be done (and that’s in addition to running the company). A smaller transaction does not necessarily scale down and may require much of the same efforts. For a buyer in a large institutional transaction, due diligence is just a cost of doing business. However, in a smaller acquisition, a life’s savings may be at stake. In either case, good adversarial process is the best way to check issues and resolve potential conflicts.

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Amidst the robust mergers and acquisitions market of the past few years, Brown Moskowitz & Kallen increasingly finds itself leading larger and more complex transactions, many valued above $100 million dollars. While clients may have always entrusted agile, experienced smaller business law firms like BMK to manage their day-to-day legal needs, creating an outsourced general counsel relationship, both buyers and sellers have typically sought large, multi-practice law firms to manage complex  M & A  transactions.  The thought process is that a large law firm can serve as a “one-stop shop,” providing access to legal subject matter experts essential to the execution of a transaction under one roof. The challenge for clients is that access to attorneys practicing in various disciplines at a larger firm does not guarantee consistent best-in-practice legal counsel across the spectrum.

When an experienced smaller law firm is leading a larger transaction, it has unfettered discretion to select the best-in-class advisors, legal and otherwise, to ensure a successful, expeditious and cost-effective closing orchestrated by the most qualified experts in every category. There is no mandate or implied directive for the lead transactional attorney to utilize her partners or colleagues.

A smaller law firm with a quality network can painstakingly select the most qualified experts to address the issues presented in a given transaction – absent any  pressure to keep all disciplines in house.  A recent example is the acquisition of Contract Filling Inc. (CFI) by Arizona Natural Resources, a portfolio company of CORE Industries. CFI, a leading New Jersey-based alcohol fragrance blending and filling company, is a long-term client of BMK. Stuart M. Brown, partner and co-chair of the commercial transactions practice at BMK, assembled a best-in-class team of subject matter experts to enable the 40-year-old company to complete its sale to ANR.

“BMK has enjoyed a long-term relationship with CFI. We understood the priorities of its leadership team, Bill and Carol Lizzi,” said Stuart Brown. “We knew what was most important to our client and we went to work to assemble a deal team that included experts in every category germane to the acquisition to bring the transaction to a successful close for them.”

“Any M&A transaction requires a strong quarterback to assemble all the various players,” said John Poppe, co-founding partner of MidCap Advisors, which served as exclusive financial advisor to CFI in the transaction. “Especially in the lower middle market, highly customized solutions are needed. You want to bring in the outside experts with the right specific background tailored to all the moving parts of the transaction. Large law firms, whether representing buyers or sellers, tend to handle all aspects of M&A transactions in house, with a team comprised primarily of the most junior attorney staff, so the clients tend to receive very generalized counsel. The bespoke solution BMK created for CFI in this case, and in many others, was optimized to perform well because its only interest was to assemble the best-in-class advisors. Period.”

The fact that seasoned M&A attorneys at smaller law firms tend to have close relationships, characterized by regular communication with their clients, makes a vital difference in determining the need for subject matter experts when selling a business in part or in whole. As Keith E. Gilman, managing partner at intellectual property law firm Lerner, David, Littenberg, Krumholz & Mentlik LLP and an advisor to CFI said, ”Many attorneys do not even realize there can be significant intellectual property at stake in manufacturing-related transactions like CFI. Stuart Brown knew this client’s business intimately and brought us in early to protect CFI’s IP interests. Oftentimes, the IP in transactions like this one gets overlooked, placing the client at a serious disadvantage in negotiations.”

Not only is it important that the lead counsel for an M&A transaction identifies and recruits the appropriate experts in each area, but the lead counsel also must create a climate where all the players interact effectively. “It’s really important that an M&A team comprised of many advisors work well together,” said Jordan Amin, partner, tax services at EisnerAmper, accounting advisor to the CFI transaction. “The team needs to be comfortable working together, relying on each other’s expertise and challenging each other to get the best results for the client. In this case, there were complicated tax issues to be communicated to other members of the team and carefully navigated. We worked with BMK to walk the seller through various tax structuring options to arrive at the most palatable solution for the client.”

Smaller law firms are proving that having seasoned senior level attorneys leading and executing industry-leading M&A transactions provides a benefit that large law firms cannot match despite their strength in numbers. Smaller firms with a robust transactional practice can assemble the best-in-class subject matter experts necessary to execute the transaction in the most cost-effective and efficient manner.

As Stuart Brown said, “Rather than speaking about how well we do what we do in the M&A arena when serving as lead transaction counsel, I’d rather have my client at CFI tell you. Here’s an email message we received following the CFI closing from President & CEO Bill Lizzi: ‘We’ve used BMK Law for more than 20 years to support our ongoing business. In 2022, BMK provided expert legal advice, support and coordination for the sale of our business, from the start of the process until final payments were made. Their team is customer focused, professional, knowledgeable, reliable and responsive. They also have a network of experts that can be tapped into for additional specific subject matter knowledge if necessary. We highly recommend their services.’”

In addition to MidCap Advisors, Lerner David and EisnerAmper, BMK was joined by the following parties in executing the CFI acquisition, which was one of the most the consequential deals in the North American cosmetics, fragrance and personal care space for 2022: Brian Satz of the Satz Law Group LLC (transaction counsel); Wanda Chin Monahan of Wanda Chin Monahan LLC (environmental counsel); Christine Gottesman (benefits counsel) and Niviritha Ketty (employment counsel) of Nukk-Freeman & Cerra, P.C.; and Jeffrey Shapiro of Lowenstein Sandler (HSR Compliance).

In addition to Stuart Brown as lead transaction counsel, the BMK team for CFI included Keith Marlowe (real estate counsel), Jay Soled (tax counsel) and Justin Escher Alpert (transaction counsel).

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Brown Moskowitz & Kallen, P.C. Transaction Receives 2022 Deal of the Year Award from The M&A Advisor

New Jersey Law Firm’s Representation of Automated Control Concepts in Acquisition by Sverica Capital Management Garners Prize in $50 to $100 Million Industrials Category

Chatham, New Jersey December 2022 – Leading New Jersey business law firm Brown Moskowitz & Kallen, P.C. has received a 2022 Deal of The Year Award by The M&A Advisor. The firm represented Automated Control Concepts, Inc. (“ACC”) in its sale to Sverica Capital Management LP. The transaction won the award in the Industrials category for deals between $50 and $100 million at the 21st Annual M&A Advisor Awards.

The M&A Advisor Awards are the most competitive and coveted honors in the mergers and acquisitions sphere. More than 400 companies submitted nominations to an independent panel of judges assembled by The M&A Advisor, the preeminent organization recognizing excellence, honoring achievement, presenting thought leadership and facilitating connections among the world’s leading dealmaking professionals.

Stuart M. Brown, partner and co-chair of the Commercial Transactions practice at Brown Moskowitz & Kallen, served as lead transaction counsel and assembled the winning team. The team was comprised of EisnerAmper (tax and transaction advisory services, due diligence, quality of earnings and project management) and Wombat Capital Markets LLC (investment banking and M&A advisory services).

ACC is a Neptune, New Jersey-based systems integrator specializing in process control, manufacturing intelligence and cybersecurity and industrial networking. Sverica Capital Management LP is a Boston-based private equity investment firm.

“The sale of ACC to Sverica was successful on all fronts. The transaction enabled ACC to broaden its business model and strategically expand into new areas while maintaining its talented workforce,” said Mr. Brown. “Given the array of moving parts, it was a complicated deal. Our firm frequently leads complex transactions and onboards strategic team members to obtain optimal results for our clients. We had great confidence in selecting EisnerAmper and Wombat Capital Markets to represent the interests of ACC at every step along the way. We are all very honored to be recognized by The M&A Advisor.”

Accompanying Mr. Brown on the BMK legal team representing ACC were Jay Soled (tax, trusts and estates) and Justin Escher Alpert (corporate and M&A).

About Brown Moskowitz and Kallen, P.C.

Brown Moskowitz & Kallen, P.C. is a New Jersey-based law firm serving privately held businesses locally, nationally, and internationally. BMK provides comprehensive counsel at every stage of the business life cycle with practice areas in commercial transactions, finance, litigation/dispute resolution, real estate, land use, technology, tax, trusts and estates. For more information, visit https://bmk-law.com/

About EisnerAmper

EisnerAmper, one of the largest business consulting firms in the world, is comprised of EisnerAmper LLP, a licensed independent CPA firm that provides client attest services; and Eisner Advisory Group LLC, an alternative practice structure that provides business advisory and non-attest services. For more information, please visit https://www.eisneramper.com/

About Wombat Capital Markets LLC

Founded in 2009, Wombat Capital is a cross-border investment bank providing Mergers and Acquisitions advisory services to entrepreneurs, boards of directors, financial investors, private and public companies. With offices in New York and Paris, Wombat Capital focuses on the lower middle market of the Pharmaceutical Outsourcing, Medical Devices and Diagnostics sectors.

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Brown Moskowitz & Kallen, P.C. represented School Photo Marketing, Inc. (SPM), located in Morganville, New Jersey, in its sale to a subsidiary of Ennis, Inc., (NYSE: EBF). Texas-based Ennis, Inc. is one of the largest private-label printed business product suppliers in the United States. The transaction was fast-tracked, closing in just over two months.

SPM provides printing, yearbook publishing and marketing-related services to more than 1,400 school and sports photographers across the country. The company operates through a similar wholesale manufacturer-distributor-end user channel as Ennis. The purchaser acquired the SPM name and will continue to operate in its current location.

“We were able to successfully close this transaction in record time for SPM in large part due to our M&A expertise and our network of best-in-class subject matter experts,” said lead transaction counsel Stuart M. Brown, partner and co-chair of the Commercial Transactions practice at BMK. “Today’s transactions require a multi-disciplinary approach given the level of complexity in our current business and legal environment. As experienced practitioners, we are able to quickly assemble a deal team to effectively and efficiently address the technical issues, including environmental, intellectual property and tax-related matters, that often arise in transactions. As a result, we save our clients a lot of unnecessary expense and stress throughout the M&A process.”

In addition to Mr. Brown, Norman D. Kallen, partner and co-chair of the Commercial Transactions practice, Linda R. Brower, senior counsel, and Jay Soled, of counsel, Tax worked on the transaction. Subject matter experts included Keith E. Gilman, managing partner at Lerner, David, Littenberg, Krumholz & Mentlik LLP (intellectual property); Wanda Chin Monahan of Wanda Chin Monahan LLC (environmental); and Nivritha Ketty (employment) and Christine Gottesman (benefits) of Nukk-Freeman & Cerra, P.C.

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On April 20, 2022, the Hon. Mary Ann Bogan, A.L.J. issued an initial decision in Farruggio’s Bristol and Philadelphia Express, Inc. v. New Jersey Department of Labor and Workforce Development, OAL No. LID 02027-17 finding, on summary judgment, that the owner-operator drivers that contracted with Farruggio’s Express were independent contractors, not employees. Accordingly, the Court found that Farruggio’s Express was not liable for state employment taxes in connection with the audit of the New Jersey Department of Labor and Workforce Development (“NJDOL”). Read More

The Russia-Ukraine conflict has raised enormous concerns for all of us. We first wish to extend our compassion to the people of Ukraine and our friends whose loved ones reside there. Second, we recognize that this conflict and the sanctions being leveled at the Russian Federation will doubtless have economic and other business impacts in international trade, cybersecurity, and other matters of importance to our clients.

Just as when the COVID-19 crisis unfolded two years ago, Brown Moskowitz & Kallen is closely monitoring the current situation to offer timely guidance regarding business operations and other legal matters. If you require immediate guidance related to your business interests in the wake of the present international crisis, we are, as always, here to serve you.

Summit, New Jersey August 2021 – Anthony M. Gruppuso has joined the litigation team as a partner at New Jersey business law firm Brown Moskowitz & Kallen, P.C. Mr. Gruppuso will focus on dispute resolution and litigation for a clientele that includes professional services firms, trustees, medical practices, limited liability company members, manufacturers and distributors, and high net worth individuals.

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Brown Moskowitz & Kallen, P.C. represented Gold Ventures and Capstone Realty Group in the $10,150,000 acquisition of 30 Two Bridges Road in Fairfield, New Jersey, a Class A, 93,260-square-foot office building. The building is situated at the juncture of Routes 80 and 46.

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Brown Moskowitz & Kallen, P.C. recently represented Vernon, California-based poultry and meat provider Randall Farms and its owners, the Bloom family, in connection with the sale of its assets excluding real estate, which the Bloom family retained. Read More

Brown Moskowitz & Kallen, P.C. has reported that its Commercial Transactions Group will complete 2020 with more than a quarter-billion dollars in successful merger and acquisition transactions on behalf of a diverse clientele.

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