M&A Conditions Precedent Checklist - Alaska

M&A CONDITIONS PRECEDENT CHECKLIST

State of Alaska

Transaction Name: [________________________________]
Transaction Type: ☐ Stock Purchase ☐ Asset Purchase ☐ Statutory Merger ☐ Other: [________________________________]
Seller/Target: [________________________________]
Buyer/Acquirer: [________________________________]
Anticipated Closing Date: [__/__/____]
Definitive Agreement Date: [__/__/____]
Outside Date (Drop-Dead Date): [__/__/____]
Deal Counsel (Seller): [________________________________]
Deal Counsel (Buyer): [________________________________]

STATUS KEY:

• NS = Not Started
• IP = In Progress
• PC = Pending Counterparty
• PR = Pending Regulatory
• C = Complete
• W = Waived
• NA = Not Applicable

PART I: PRE-CLOSING CONDITIONS

A. Regulatory Approvals

B. Third-Party Consents

C. Stockholder/Member Approvals

PART II: SELLER'S CONDITIONS TO CLOSING (Conditions for Seller's Benefit)

A. Representations and Warranties Bring-Down

B. Buyer's Covenants Performed

C. Other Seller Conditions

PART III: BUYER'S CONDITIONS TO CLOSING (Conditions for Buyer's Benefit)

A. Representations and Warranties Bring-Down

B. Seller's Covenants Performed

C. No Material Adverse Change (MAC/MAE)

D. Legal Opinions

E. Financial and Diligence Conditions

F. Employee and Benefits Conditions

G. Insurance / RWI Conditions (if Applicable)

PART IV: MUTUAL CONDITIONS TO CLOSING

PART V: ALASKA-SPECIFIC REQUIREMENTS

A. State Merger Filings (Statutory Merger Transactions)

B. Alaska Good Standing and Entity Status

C. Alaska Tax Matters

D. Alaska-Specific Licensing and Permits

E. Bulk Sales Considerations

PART VI: CLOSING DELIVERABLES CHECKLIST

A. Seller's Closing Deliverables

B. Buyer's Closing Deliverables

C. Funds Flow and Payment

PART VII: POST-CLOSING CONDITIONS AND OBLIGATIONS

PART VIII: PRACTICE NOTES -- ALASKA-SPECIFIC

Key Alaska Considerations

1. Merger Statute Framework: Alaska provides two statutory paths for mergers: (a) the Alaska Corporations Code (AS 10.06.504-10.06.558) for mergers involving Alaska corporations, and (b) the Alaska Entity Transactions Act (AS 10.55.201-10.55.206) for cross-entity mergers involving different entity types. Determine which applies based on entity types involved.

2. Filing Office: All merger documents are filed with the Alaska Department of Commerce, Community, and Economic Development, Division of Corporations, Business and Professional Licensing, PO Box 110806, Juneau, AK 99811-0806.

3. Low Filing Fees: Alaska's Statement of Merger filing fee is $25, among the lowest in the nation. However, standard processing takes 10-15 business days; plan accordingly.

4. Shareholder Approval: Under AS 10.06.530, a merger generally requires approval by a majority of outstanding shares. Review the corporation's articles for any supermajority requirements.

5. Dissenter's Rights: Alaska provides dissenters' rights under AS 10.06.574-10.06.582. Shareholders who do not vote in favor of the merger may demand payment for their shares at fair value. Proper notice is critical.

6. Short-Form Merger: Under AS 10.06.554, a parent owning all outstanding shares of a subsidiary may merge without subsidiary shareholder approval. Under AS 10.06.556, the parent board adopts the plan and files articles of merger.

7. No Bulk Sales Act: Alaska has repealed UCC Article 6 (Bulk Transfers). There is no state-level bulk sales compliance obligation, but contractual provisions may impose similar requirements.

8. Corporate Income Tax: Alaska imposes a corporate net income tax (AS 43.20). Ensure final returns are filed and obligations cleared. Alaska does not impose a personal income tax or general sales tax.

9. Oil, Gas, and Natural Resources: For transactions involving oil and gas assets, additional considerations include production tax (AS 43.55), oil and gas property tax (AS 43.56), and Alaska Oil and Gas Conservation Commission filings.

10. Alaska Native Corporation Lands: If the target holds interests in Alaska Native corporation lands or assets, ANCSA restrictions on transfer may apply. Consult with Native corporation counsel.

Common Pitfalls

• Failing to account for Alaska's processing times when scheduling closing
• Not checking for local borough or municipality business license requirements
• Overlooking fisheries or natural resource permits that may require separate agency approval
• Assuming no state tax clearance is needed -- Alaska does impose corporate income tax
• Neglecting dissenter's rights notice requirements
• Forgetting to withdraw foreign entity qualification after merger (if disappearing entity was foreign-qualified)
• Not verifying biennial report is current before filing merger documents

RWI and Insurance Considerations

• For Alaska transactions, RWI underwriters may have limited familiarity with Alaska-specific regulatory requirements. Ensure the policy does not exclude Alaska-specific representations.
• D&O tail policies should be bound at or before closing. Typical tail period is 6 years.
• If the target has environmental exposure (common in Alaska given oil/gas and mining operations), confirm whether environmental liabilities are covered or excluded under the RWI policy.

Timing and Scheduling Notes

• Alaska DCCED standard processing: 10-15 business days for merger filings
• No expedited processing is generally available; plan filing well in advance of target closing date
• HSR filing (if applicable): 30-day waiting period from date of filing
• Dissenter's rights demand period must be factored into the timeline

SOURCES AND REFERENCES

• Alaska Entity Transactions Act: AS 10.55.201-10.55.206
• Alaska Corporations Code, Organic Change: AS 10.06.504-10.06.558
• Alaska DCCED Corporation Forms and Fees: commerce.alaska.gov
• Statement of Merger Form (08-564): commerce.alaska.gov
• Hart-Scott-Rodino Act, 15 U.S.C. 18a; 2025 thresholds: ftc.gov
• Alaska Dissenters' Rights: AS 10.06.574-10.06.582