Michael B. Kirwan

Partner

Overview

Michael B. Kirwan is a partner and business lawyer with Foley & Lardner LLP. He counsels business clients on securities, acquisitions, financings, corporate governance matters, and fund formations. Michael has worked on numerous public and private offerings, including IPOs and follow-on offerings, represented many companies with their periodic reporting obligations and other matters before the Securities and Exchange Commission, represented special committees of boards of directors, and handled a variety of business combinations, venture capital matters, and real estate fund formations. He has significant experience in the banking, insurance and REIT industries. Michael represents a number of publicly traded companies that are listed on the NYSE, NASDAQ, and OTCQX. He is a designated advisor for disclosure for OTCQX listed companies. Michael is a member of the firm’s Transactional & Securities, Finance & Financial Institutions and Private Equity & Venture Capital Practices.

Prior to joining Foley in 2006, Michael was a partner at LeBoeuf, Lamb, Greene & MacRae, LLP. He then became the general counsel and eventually the chief operating officer for Encore Development, Inc., a national technology consulting firm.

Representative Transactions

  • Fund counsel for restructuring two real estate funds (each in excess of $200 million in assets) to convert carried interests into partnership interests among other things in 2018
  • Issuer's Counsel for $300 million note offering for an NYSE listed REIT in 2018
  • Seller’s counsel for sale of private REIT for $42 million in 2018
  • Issuer's counsel for $300 million note offering for an NYSE listed REIT in 2017
  • Issuer's counsel for $650 million note offering for an NYSE listed REIT in 2017
  • Issuer’s counsel for $400 million common stock offering for an NYSE listed REIT in 2016
  • Issuer’s counsel for private placement of $23 million senior secured notes for an NYSE listed specialty finance company in 2016
  • Issuer’s counsel for $233 million forward sale of common stock for an NYSE listed REIT in 2016
  • Issuer’s counsel for $50 million ATM program for an NYSE listed specialty finance company in 2016
  • Seller’s counsel for sale of two private REITs for $48 million in 2016
  • Counsel to special committee of board of directors for a public, non-listed REIT’s $4.8 billion acquisition in 2015
  • Seller’s counsel for sale of a private REIT for $30 million in 2015
  • Issuer’s counsel for $250 million note offering for an NYSE listed REIT in 2015
  • Seller’s counsel for sale of a private REIT for $21 million in 2015
  • Issuer’s counsel for forward sale of $193 million of common stock for an NYSE listed REIT in 2015
  • Counsel to special committee of board of directors for a public, non-listed REIT’s $4 billion merger with two other affiliated REITs in 2014
  • Issuer’s counsel for $70 million convertible note offering pursuant to Rule 144A and Regulation D for an NYSE listed specialty finance company in 2014
  • Issuer’s counsel for $200 million ATM program for an NYSE listed REIT in 2014
  • Issuer’s counsel for $250 million “green bond” offering for an NYSE listed REIT in 2014
  • Issuer’s counsel for $189 million IPO on NYSE of specialty finance company in 2011

Recognition

In 2015, Michael was recommended by The Legal 500 for his work in mergers and acquisitions. He has been selected for inclusion in The Best Lawyers in America© since 2014 and he has been Peer Review Rated as AV® Preeminent™, the highest performance rating in Martindale-Hubbell's peer review rating system.

Thought Leadership

He has written numerous articles for various Florida Bar publications and trade journals.

Affiliations

Michael is a former president of the North Florida Chapter of the Association for Corporate Growth.

Education

Michael received his J.D. from Harvard Law School in 1988. He received his bachelor’s degree, magna cum laude, from Duke University in 1984.

Admissions and Professional Memberships

Michael is admitted to practice in Florida. He is a member of The Florida Bar and the American and Jacksonville Bar Associations.

Community Engagement

Michael has served on numerous civic and charitable boards, including the board of trustees for Jacksonville Episcopal High School, the board of directors of Scenic Jacksonville, Inc., the board of directors of Floridians for Good Government, Inc., and numerous Athena Powerlink advisory panels. He is a former chairman of the City of Jacksonville’s Ethics Commission.

Representative Matters

Showing of
Foley represented Emergent Capital, Inc. in its Regulation S offering of Senior Secured Notes in Canada.
Represented Seller of largest distributor of nutritional supplements in connection with sale of business to private equity firm.
A cross-disciplinary team of Foley lawyers secured a dismissal with prejudice in Florida federal court for Emergent Capital Inc., in a case that could pave the way for companies seeking to minimize meritless shareholder actions. This suit was believed to be the first nationwide to challenge a corporate bylaw requiring minimum-support-to-sue, by which shareholders must have written consent from holders of at least three percent of the company’s shares before suing the company or its directors or officers on behalf of other shareholders in a class action or a derivative action. In addition to dismissing the complaint with prejudice, the plaintiff issued a statement acknowledging that the board acted in good faith and did not engage in any improper behavior in adopting the bylaw or otherwise. Over 90% of mergers and acquisitions of public companies lead to shareholder lawsuits, most of which are resolved without any monetary benefit to shareholders, while imposing substantial costs. Directors of public companies are closely following activity related to the minimum-support-to-sue bylaw and other bylaws seeking to manage shareholder litigation before it is filed. This resolution leaves the door open for other companies to follow Emergent’s lead and adopt similar bylaws to rein in meritless shareholder lawsuits.

Insights