By the Templateez Team · Licensed Attorney · June 2026

Commercial Transactions Intake: What Deal Lawyers Need at the First Meeting

A manufacturing company calls on a Wednesday afternoon. They have been in talks with a competitor about an acquisition — asset purchase, possibly the whole company — and they want to close before the end of Q3. They have a handshake on price. They have not discussed what happens to the target's employees, who is assuming which liabilities, whether there are regulatory filings required, or what the tax consequences look like. They need a lawyer, and they need one who asks the right questions before the letter of intent goes out.

This is the reality of commercial transaction intake. The client is focused on the deal price. The lawyer's job is to identify every structural, regulatory, financial, and contractual issue that will determine whether that deal actually closes — and on what terms. A commercial transactions intake form that captures these details at the initial meeting creates a foundation for the engagement letter, the due diligence checklist, the term sheet markup, and the closing timeline. Miss something at intake and you will discover it at the worst possible moment: in the middle of negotiations, during a regulatory review, or after signing when it is too late to renegotiate.

Transaction type: asset purchase, stock purchase, merger, or joint venture

The threshold question in any commercial transaction is structural. How will this deal be organized? The structure determines the tax treatment, the liability exposure, the required consents, the employee transition mechanics, and the regulatory filing obligations. Your intake must classify the transaction before you draft a single document:

• Asset purchase — the buyer acquires specific assets (equipment, inventory, customer lists, intellectual property, real property) and assumes specified liabilities. The seller retains the entity shell and any liabilities not expressly assumed. This is the cleanest structure for the buyer because it allows cherry-picking — but it requires individual assignment of contracts, which means tracking down consent provisions in every material agreement the seller has signed. Your intake should identify the major asset categories the buyer wants and any liabilities the buyer expects to assume.
• Stock or membership interest purchase — the buyer acquires the ownership interests in the target entity. The entity continues to exist with all of its assets, contracts, liabilities, and obligations. This is simpler from a contract-assignment standpoint (the entity remains the contracting party), but the buyer inherits everything — including unknown liabilities, pending litigation, and tax exposure. Your intake needs to flag known liabilities and the client's risk tolerance for unknown ones.
• Merger — statutory combination of two entities. Can be structured as a forward merger (target merges into buyer), reverse merger (buyer merges into target, often to preserve the target's contracts and licenses), or triangular merger (target merges into a subsidiary of the buyer). Each has different tax consequences and different effects on the surviving entity's liabilities. Capture whether the parties have discussed the merger form and whether there are specific reasons driving that choice — often it is license preservation or tax treatment.
• Joint venture — two or more parties form a new entity or contractual arrangement to pursue a specific business opportunity. Unlike an acquisition, a joint venture preserves the independence of the venturers. Your intake should capture the proposed scope of the venture, the capital contributions, the governance structure, and the exit mechanisms. Joint ventures fail most often because the parties did not agree on what happens when one side wants out.

Many deals start as one structure and end as another. A client who walks in saying "we want to buy their assets" may shift to a stock purchase once you identify fifty contracts that require consent for assignment. The intake should capture the client's current thinking while flagging the structural alternatives that may need to be explored.

Parties and entity structures

Transactional intake requires a level of entity detail that goes well beyond names and addresses. You need to understand the organizational architecture on both sides of the deal because it determines signing authority, required approvals, regulatory filings, and tax treatment:

• Buyer entity — is the buyer an existing operating company, a holding company, a newly formed acquisition vehicle, or a private equity fund buying through a portfolio company? Each has different authority, capitalization, and guaranty implications. If the buyer is a PE fund, identify the fund entity, the general partner, and whether the fund will form a new SPV for this deal.
• Seller entity — exact legal name, state of formation, entity type. Confirm the seller is in good standing. If the seller is an individual doing business through multiple entities, identify all of them — the purchase agreement will need to address each one that holds assets being acquired.
• Target entity — in a stock purchase or merger, the target is the entity whose ownership interests are changing hands. Obtain the formation documents, operating agreement or bylaws, any shareholder agreements, and the current capitalization table. You need to know every person or entity that holds an ownership interest, because all of them (or a sufficient majority under the governing documents) must consent to the sale.
• Subsidiaries and affiliates — does the target own subsidiaries? Does it hold interests in joint ventures? These are assets of the target, and in a stock purchase they come along automatically. In an asset purchase, each one requires separate treatment. Your intake should map the target's organizational chart.
• Signing authority — who has authority to sign the purchase agreement? This is governed by the entity's formation documents, operating agreement, or bylaws. In many LLCs, a sale of substantially all assets requires a supermajority or unanimous member vote. In corporations, a sale outside the ordinary course of business typically requires board approval and, depending on state law, shareholder approval. Determine the approval requirements at intake so you can plan the timeline accordingly.

When the transaction involves forming a new entity — whether an acquisition vehicle, a joint venture entity, or a post-closing holding company — the analysis overlaps directly with corporate formation intake. The formation documents, governance structure, and capitalization of the new entity must be drafted in parallel with the transaction documents.

Deal value and consideration

The purchase price is never a single number. It is a structure — and the structure has legal, tax, and practical consequences that must be captured at intake:

• Purchase price — what is the headline number? Is it fixed or is there a formula component? Many commercial transactions use a multiple of EBITDA, trailing revenue, or book value, which means the price is not finalized until closing or even post-closing. Document the pricing methodology the parties have discussed.
• Form of consideration — cash, promissory note, equity in the buyer, assumption of liabilities, or a combination. Each has different tax consequences for both sides. A seller receiving buyer equity has a very different risk profile than a seller receiving cash at closing.
• Earnout — a portion of the purchase price contingent on the target's post-closing performance. Earnouts are a common solution when the parties disagree on valuation, but they are a frequent source of post-closing disputes. Your intake should capture the proposed earnout metrics (revenue, EBITDA, customer retention, milestone achievement), the measurement period, and who controls the business during that period.
• Working capital adjustment — most asset and stock purchases include a mechanism to adjust the purchase price based on the target's working capital at closing relative to a target amount. This requires an estimated closing balance sheet and agreement on what constitutes working capital. Your intake should capture whether the parties have discussed a working capital peg.
• Escrow and holdback — a portion of the purchase price held back or placed in escrow to secure the seller's indemnification obligations. Document the proposed holdback percentage, the escrow period, and the release conditions.
• Allocation — in an asset purchase, the purchase price must be allocated among the acquired assets under Section 1060 of the Internal Revenue Code. The allocation has opposite tax incentives for buyer and seller (the buyer wants more allocated to depreciable assets; the seller wants more allocated to capital-gain property). Determine at intake whether the parties have discussed allocation and whether it will be negotiated or determined by formula.

Due diligence scope

Due diligence is where most of the legal work in a commercial transaction lives, and the scope of that review should be outlined at intake. A buyer who says "just do a quick look" and a buyer who says "turn over every rock" will receive very different engagement letters, fee estimates, and timelines:

• Financial diligence — historical financial statements, tax returns, accounts receivable and payable aging, debt schedules, intercompany transactions. Your client may be conducting this in-house or through an accounting firm, but you need to know the scope to coordinate timing and identify legal issues that surface in the financials (undisclosed liabilities, related-party transactions, revenue recognition questions).
• Legal diligence — material contracts, pending and threatened litigation, regulatory compliance, environmental liabilities, employment agreements, benefit plans, intellectual property portfolios, insurance coverage, real property leases, permits and licenses. Each of these is a diligence category with its own checklist, and your intake should determine which ones are in scope based on the target's industry and the transaction structure.
• Regulatory diligence — industry-specific regulatory requirements, licenses and permits that may not be transferable, compliance histories with agencies (OSHA, EPA, state regulators), any pending investigations or enforcement actions. If the target operates in a regulated industry (healthcare, financial services, telecommunications, energy), regulatory diligence is often the longest pole in the tent.
• Environmental diligence — Phase I environmental site assessments, known contamination, underground storage tanks, compliance with federal and state environmental laws. In asset purchases involving real property, environmental liability can be the single largest unknown risk. Capture whether the client has any existing environmental reports or knowledge of contamination issues.
• Customer and supplier concentration — a target whose revenue depends on one or two major customers is a fundamentally different risk profile than one with a diversified customer base. The same analysis applies to key suppliers. This information shapes the representations and warranties you negotiate and the materiality thresholds you set.

The due diligence scope drives the engagement letter. A deal with limited diligence and a short timeline has different staffing, pricing, and risk allocation than a comprehensive review. Get the parameters at intake.

Representations and warranties

Reps and warranties are the backbone of every purchase agreement, and the negotiation of those provisions consumes more attorney time than any other section of the deal documents. Your intake should capture the information you need to draft the first round:

• Organization and authority — the seller represents that it is duly formed, in good standing, and has the authority to consummate the transaction. These are usually non-controversial, but authority issues in multi-member LLCs or family-owned corporations can be surprisingly contentious.
• Financial statements — the seller represents that its financial statements are accurate and prepared in accordance with GAAP (or some other agreed standard). This rep is the foundation for the working capital adjustment and any price-based claims post-closing.
• Material contracts — the seller represents that it has disclosed all contracts above a materiality threshold, that those contracts are in full force and effect, and that no party is in default. Your intake should identify the key contracts the client already knows about and flag any that may have change-of-control provisions.
• Litigation — the seller represents that there is no pending or threatened litigation, and no orders, judgments, or decrees affecting the business. If there is pending litigation, the intake should capture the details so you can carve it into a disclosure schedule and negotiate a specific indemnity. Disputes that have already escalated to commercial litigation require their own parallel analysis.
• Tax matters — the seller represents that it has filed all required tax returns, paid all taxes due, and has no pending audits or disputes with taxing authorities. Tax reps are heavily negotiated because the buyer's liability for pre-closing tax obligations depends on the transaction structure and the specificity of these representations.
• Intellectual property — the seller represents that it owns or has valid licenses to all IP used in the business, that the IP does not infringe third-party rights, and that no third party is infringing the seller's IP. In technology and brand-driven transactions, the IP reps are often the most critical provisions in the agreement.
• Employee and benefit matters — the seller represents compliance with employment laws, discloses all benefit plans and their funding status, and identifies any obligations triggered by the transaction (WARN Act notices, change-of-control payments, acceleration of equity awards).

Closing conditions and timeline

The gap between signing and closing is where deals die. Your intake should identify the conditions that must be satisfied before the transaction can close, and build a realistic timeline around them:

• Regulatory approvals — Hart-Scott-Rodino (HSR) antitrust filing if the deal meets the size thresholds (currently $119.5 million for the size-of-transaction test). HSR requires a 30-day waiting period that extends if the FTC or DOJ issues a second request. Industry-specific approvals may also be required — state insurance department approval, FCC approval, banking regulator approval. Each adds weeks or months to the timeline.
• Third-party consents — landlord consents for lease assignments, lender consents for change-of-control provisions in credit agreements, customer consents for contracts with anti-assignment clauses, government agency approvals for permits and licenses that are entity-specific. Consent requirements are the most common reason asset purchases take longer than expected. Identify the key consents at intake.
• Financing contingency — is the buyer's obligation to close contingent on obtaining financing? If so, what are the terms? A committed financing letter from a lender is very different from a "we expect to get a loan" conversation. The seller will push for no financing contingency or a tight outside date; the buyer will want protection if the financing falls through. Capture the financing status at intake.
• Material adverse change (MAC) — the buyer's right to walk away if the target's business suffers a material adverse change between signing and closing. MAC clauses are heavily negotiated, and the definition of "material adverse change" is often the subject of its own multi-day negotiation. Your intake should identify the key business risks that might trigger a MAC — customer concentration, pending regulatory action, seasonal revenue patterns, and industry-wide disruptions.
• Simultaneous sign and close — some deals sign and close simultaneously, eliminating the interim period entirely. This is common in smaller transactions without regulatory filing requirements. Determine at intake whether a simultaneous close is feasible and whether the client prefers it.

Non-compete, non-solicit, and restrictive covenants

In most commercial transactions, the buyer is paying not just for assets but for the seller's agreement to stay out of the market. Restrictive covenants are a standard component of purchase agreements, but their enforceability varies dramatically by jurisdiction:

• Non-compete — the seller (and often the seller's principals) agree not to engage in a competing business for a specified period within a defined geographic area. Capture the client's expectations on scope, duration, and geography. Overly broad non-competes are unenforceable in many states; some states (California, notably) refuse to enforce them at all outside the sale-of-business context.
• Non-solicitation — the seller agrees not to solicit the target's employees or customers. Non-solicits are generally more enforceable than non-competes, but the definition of "solicit" and the scope of covered employees and customers are negotiation points.
• Holdback or forfeiture — earnout payments or holdback amounts may be tied to compliance with restrictive covenants, giving the buyer a self-help remedy if the seller violates the restrictions. Your intake should determine whether the deal structure includes this kind of linkage.

Indemnification: post-closing risk allocation

The indemnification section of a purchase agreement is where the parties allocate risk for breaches of representations, undisclosed liabilities, and specific known risks. Your intake should capture the information needed to draft an indemnification framework that protects your client:

• Survival periods — how long do the representations survive closing? A standard framework gives fundamental reps (organization, authority, capitalization, title to assets) an indefinite or long survival period, tax reps a survival period matching the statute of limitations, and general reps a shorter period (12-24 months). Capture the client's expectations.
• Caps and baskets — the indemnification cap limits the seller's maximum exposure (often the purchase price for fundamental reps and a percentage of the purchase price for general reps). The basket (deductible or tipping basket) sets the threshold before indemnification claims are payable. These are pure negotiation points — your intake should determine the client's starting position.
• Special indemnities — specific known risks that the parties allocate outside the general indemnification framework. If due diligence reveals a pending environmental cleanup, a tax audit, or ongoing litigation, the buyer will typically demand a special indemnity with its own cap (often dollar-for-dollar) and a longer survival period. Your intake should flag any known risks that are likely candidates for special indemnification.
• Escrow mechanics — if a portion of the purchase price is escrowed to secure indemnification, the escrow agreement must address the release schedule, the claim procedures, and the treatment of disputed amounts. Capture the client's expectations on escrow percentage and duration.
• R&W insurance — representation and warranty insurance has become increasingly common in middle-market and large transactions. The buyer purchases a policy that covers breaches of the seller's representations, reducing or eliminating the need for a seller indemnity. If either party is interested in R&W insurance, the policy procurement process must be integrated into the deal timeline — underwriting typically takes 2-3 weeks and requires access to the diligence materials.

Intellectual property transfers

In any transaction involving a business with proprietary technology, brand assets, or creative works, the IP transfer provisions require careful attention at intake:

• Owned IP — patents, trademarks, copyrights, trade secrets, domain names, and social media accounts. Your intake should catalog the major IP assets the client knows about. In an asset purchase, each must be specifically identified and assigned. In a stock purchase, they transfer with the entity but you still need to confirm clear title.
• Licensed IP — software licenses, technology licenses, brand licenses that the target uses in its business. Many of these are non-assignable without consent or terminate on change of control. Identify the key licenses at intake so you can assess the consent and renegotiation requirements before signing.
• Employee-created IP — does the target have proper invention assignment agreements with its employees and contractors? If not, there may be gaps in the target's ownership chain for IP developed by those individuals. This is a diligence issue, but it starts at intake with the question: does the company use invention assignment agreements?
• Transitional IP licenses — if the seller is retaining part of its business, the parties may need transitional license agreements allowing the buyer to use the seller's name, marks, or technology for a defined period, and vice versa. Capture whether any shared-use arrangements are anticipated.

Employee transition

How the target's employees are treated in the transaction is often the most operationally complex and emotionally charged aspect of the deal. Your intake should capture the client's expectations and identify the legal obligations:

• Asset purchase vs. stock purchase — in a stock purchase, the employees remain employees of the same entity. In an asset purchase, the employees' relationship with the seller terminates and the buyer must offer new employment. This distinction has significant consequences for benefit plan continuity, accrued PTO, and WARN Act obligations.
• Key employees — are there individuals whose continued employment is critical to the deal? If so, the buyer will typically require employment agreements or retention arrangements as a condition to closing. Identify those individuals at intake.
• WARN Act — the federal Worker Adjustment and Retraining Notification Act requires 60 days' written notice before a "plant closing" or "mass layoff" affecting 50 or more employees at a single site. Many states have their own mini-WARN statutes with lower thresholds and longer notice periods. If the transaction will result in any workforce reduction, determine the headcount and location details at intake.
• Benefit plans — the treatment of the target's health insurance, retirement plans (401(k), pension), equity compensation, and other benefit plans in the transaction. In a stock purchase, the plans continue but may need to be amended or terminated. In an asset purchase, the buyer must decide which plans to mirror or replace. Multiemployer pension plan withdrawal liability is a particular trap — if the target contributes to a multiemployer plan, the transaction may trigger withdrawal liability that can exceed the purchase price.
• Change-of-control payments — some executives have employment agreements providing for severance or accelerated vesting upon a change of control. These payments are a cost of the transaction and need to be identified at intake so they can be factored into the purchase price negotiation and, if applicable, analyzed under Section 280G (golden parachute rules).

Tax structure

Tax considerations often dictate the transaction structure, and a deal that makes economic sense pre-tax can be unacceptable to one or both parties after tax. Your intake should capture the tax parameters that will drive the structural analysis:

• C-corporation vs. pass-through — the seller's entity type determines the tax consequences of the sale. A C-corporation sale creates potential double taxation (corporate-level tax on asset sale, plus shareholder-level tax on distribution of proceeds). A stock sale of a C-corp avoids the entity-level tax but may be less favorable for the buyer (no asset basis step-up). Pass-through entities (S-corps, LLCs, partnerships) have their own complexities, including Section 338(h)(10) elections and Section 754 elections.
• Tax elections — Section 338(h)(10) (treating a stock sale as an asset sale for tax purposes), Section 336(e), Section 754 (inside basis adjustment for partnerships), and qualified small business stock (Section 1202) exclusions. Each of these elections can dramatically change the after-tax economics for one or both parties. Identify at intake whether the client's tax advisor has expressed a preference.
• State and local tax — transfer taxes, sales taxes on asset transfers, state income tax implications of the transaction structure. If the target operates in multiple states, each state's treatment may differ. Many deals involving real property trigger transfer taxes that must be factored into the closing cost estimate.
• Installment sale treatment — if part of the purchase price is deferred (seller financing, earnout), the seller may be able to defer gain recognition under Section 453 installment sale rules. Determine whether the seller's tax advisor is planning for installment treatment and whether the deal structure supports it.

Financing structure

If the buyer is financing the acquisition, the financing terms affect the purchase agreement, the closing timeline, and the post-closing capital structure:

• Debt financing — senior secured loans, mezzanine debt, seller notes. Obtain the commitment letter or term sheet from the lender. The lender's conditions (minimum EBITDA, maximum leverage ratio, required representations) will influence the purchase agreement because the buyer will need the seller's cooperation to satisfy them.
• Equity financing — if the buyer is raising equity capital to fund the acquisition, identify the equity investors and any conditions on their commitment. A buyer that is dependent on a capital raise to fund the purchase price introduces a different risk profile than a buyer with committed capital.
• Seller financing — a promissory note from the buyer to the seller for a portion of the purchase price. This is common in small and middle-market deals where bank financing does not cover the full price. Your intake should capture the proposed note terms: principal amount, interest rate, maturity, amortization schedule, security (is the note secured by the acquired assets?), and subordination (if there is also bank debt).
• Security interests and liens — the buyer's lender will typically require a first-priority security interest in the acquired assets. The seller must deliver the assets free of liens at closing, which means paying off existing debt and obtaining UCC releases. Your intake should identify the seller's existing lenders and secured obligations.

Building the deal from the first conversation

A commercial transaction intake is not a data-collection exercise. It is the diagnostic that determines your staffing plan, your engagement letter, your due diligence checklist, and your negotiation strategy. Every question at intake maps to a provision in the purchase agreement, a line item in the closing checklist, or a risk factor in the deal analysis.

Transactional lawyers who capture the right information at the initial meeting draft better letters of intent, run more efficient due diligence processes, negotiate from a stronger position, and close deals on schedule. The ones who treat intake as a formality spend the next three months discovering issues they should have identified in the first hour.

For firms that handle both the transactional and dispute sides of commercial relationships, the Legal Bundle includes 38 legal practice categories — from commercial transactions to commercial litigation — each with intake fields tailored to the specific analysis that practice area demands.