Agreement and Plan of Merger Closing Checklist (Private Target)

Summary

This sample checklist is tailored to a simultaneous sign-and-close reverse triangular merger involving Delaware entities, in which the merger sub entity (Merger Sub), a newly formed subsidiary of the purchaser entity (Purchaser), will merge with and into the target entity (Company), with the target entity surviving as a wholly-owned subsidiary of the purchaser entity. The items to be included in a closing checklist are very dependent on the nature and timing of the transaction, so before preparing a closing checklist, consider the following variables: (i) structure of the transaction (i.e., reverse triangular merger, forward triangular merger, stock purchase, asset purchase), and (ii) timing of the signing and closing (i.e., simultaneous or bifurcated). In addition, the specific documents and items that may need to be included in a closing checklist will vary from deal to deal depending on a number of factors, including, but not limited to: (i) the nature of the business being acquired, (ii) issues discovered during diligence, (iii) number of stockholders and classes of voting stock, (iv) specific requirements of the applicable jurisdiction's merger or acquisition statutes, and (v) the goals and needs of each of the parties involved in the transaction. Finally, the closing checklist is an extremely fluid document and should be updated daily to reflect the progress and status of the transaction at hand. Note that this checklist is not exhaustive of all of the items that may need to be included in a given transaction. Carefully review the main transaction document in order to identify the necessary items to be included. While controlling the closing checklist may seem like a daunting and meticulous task at first, it is actually a great opportunity for a junior associate to become familiar with the universe of documents in an M&A transaction.