Contents:

Chapter 1 By Way Of Introduction Chapter 2 Negotiating Techniques And Tactics 2.1. Some Preliminary Observations 2.1.1. Doin’ What Comes Naturally 2.1.2. Practice What I Preach 2.2. The Central Role of Compromise 2.2.1. The Back of My Hand to the Non-Negotiable Demand 2.2.2. How To Say “No” Without Seeming Negative 2.2.3. Marshalling Arguments to Support Your Cause 2.2.4. The Creative Discovery of Common Ground 2.2.5. The Ultimate Solubility of Most Issues 2.3. Getting A Leg Up 2.3.1. The Twin Virtues of Persistence and Perspective 2.3.2. Volunteering for the Draft 2.3.3. Timing—of the Essence 2.3.4. To Swap, Perchance to Cede 2.3.5. Hoist On His Own Petard 2.3.6. The Absurdity of It All 2.3.7. Threats, Fits, and Other Adventures in Brinkmanship 2.3.8. Staffing the Negotiations 2.3.9. Clients are People, Too 2.4. Some Closing Observations 2.4.1. Freedom of Contact 2.4.2. Creative Motivation 2.4.3. Gamesmanship and Other Instruments of the Devil 2.4.4. They’re Not Making Negotiators Like They Used to. . Chapter 3 Preliminary Negotiations 3.1. The Lawyer’s Role in the Opening Rounds 3.2. Sidling Up to the Purchase Price 3.2.1. Alphonse and Gaston Revisited 3.2.2. Digging That Well-known Hole 3.2.3. A Deal Does Not Live by Price Alone 3.3. The Agreement in Principle 3.3.1. Is This Document Necessary? 3.3.2. A Metter of Form 3.3.3. To Bind or Not to Bind 3.3.4. Points to be Covered 3.3.5. Points to be Uncovered 3.3.6. The Other Side of the Coin 3.4. Federal Disclosure Requirements 3.4.1. Some Guidelines for the Public Announcement 3.4.2. Content of the Press Release 3.4.3. Interaction with the Negotiating Process 3.4.4. The Non-Agreement in Principle Chapter 4 Structuring The Transaction 4.1. An Ode to Structuring 4.2. The Basic Forms of Acquisition Transactions 4.3. As Between Them, Taxes are Less Certain Than Death 4.3.1. Lawyers and Tax Experts 4.3.2. The I-Hate-To-Learn-Tax-Law Handbook 4.3.3. Putting Your New-Found Knowledge to Work 4.3.4. The Tax Ruling Imprimatur 4.4. The Merger Lawyer As Part-Time Accountant 4.4.1. Lawyers and Accountants 4.4.2. Pooling Is Not A New Form of Aquatics 4.4.3. Accounting Principles at the Bargaining Table 4.5. Considerations of Corporate Law 4.5.1. The Requisites of Corporate Authorization 4.5.2. Merger Mania; Appraising Appraisal Rights 4.5.3. The Practical View of Corporate Mechanics 4.6. Dealing With Assets and Liabilities 4.6.1. Avoiding Unwanted Liabilities 4.6.2. The Pros and Cons of Piecemeal Assets 4.7. Feeling Secure Under the Securities Law 4.7.1. A Bit of History 4.7.2. Dealing With Registered Transactions Today 4.7.3. The Corporate Private Placement 4.7.4. The New Game in Town 4.8. A Wrap-up of the Subject 4.8.1. Miscellaneous Structuring Considerations 4.8.2. A Few More Examples Chapter 5 An Overview Of The Acquisition Agreement 5.1. A Brief Essay on Forms 5.1.1. A Form in Every File Cabinet 5.1.2. The Cardinal Sins of Form Abuse 5.1.3. Riding the Coattails 5.1.4. Cheaper by the Pound 5.2. The Anatomy of the Agreement 5.2.1. A Skeletal Outline 5.2.2. Simultaneous vs. Deferred Closing 5.2.3. The Simultaneous/Deferred Decision in the Negotiating Process 5.3. The Intricate of the Various Articles 5.3.1. The Four Horsemen: A Statement of Purpose - Representations - Covenants - Conditions - Indemnification 5.3.2. The Case of the Late-Blooming Lawsuit 5.3.3. The Neurotic Seller and the Pound of Flesh 5.3.4. The Problem of the Tardy Financial 5.3.5. Reacting to the Delayed Disclosure Schedule 5.4. The Built-In Purchaser’s Bias Chapter 6 Purchase Price Considerations 6.1. The Principal Forms of Payment 6.1.1. Cash: Color it Green 6.1.2. Promissory Notes: the Deferred Reckoning - Tax Treatment - Interest - Negotiability -Security 6.1.3. Equity Securities: Join the Team 6.2. Negotiating Stock Valuation Provisions 6.2.1. The Seller as Semi-Involuntary Investor 6.2.2. Some Alternative Approaches to Pricing 6.2.3. Surveying the Relevant Factors 6.2.4. A Personal View of the Decision 6.2.5. Pricing the Publicity-Held Seller 6.3. Handling a Contingent Purchase Price 6.3.1. Some General Observations 6.3.2. Formulating the Earnout Formula 6.3.3. Defending and Computing Earnings 6.3.4. A Glance at Certain Purchase Price Components 6.3.5. Who Runs the Show? 6.3.6. The Kick-out Clause 6.4. Tying the Purchase Price to Asset Values 6.4.1. A Statement of the Problems 6.4.2. A Proposed Solution Chapter 7 Representations and Warranties 7.1. An Analytical Framework for Negotiating Representations 7.1.1. Discerning the Purchaser’s Purposes 7.1.2. Evaluating Objections in Terms of Purpose 7.1.3. Helping Seller Over the Hump 7.2. The Ubiquitous Disclosure Schedule 7.2.1. Backbone of the Representation Process 7.2.2. From the Seller’s Viewpoint 7.2.3. The Schedule-less Acquisition 7.3. Every Seller’s Favorite Caveats 7.3.1. Materiality is in the Eye of the Beholder 7.3.2. A Little Knowledge is a Dangerous Thing 7.4. Specific Representations of the Seller 7.4.1. Corporate and Stock Matters 7.4.2. Financial Statement and Bring-Down 7.4.3. Liabilities and Taxes 7.4.4. Asset Representations 7.4.5. Leases, Contracts and Other Commitments 7.4.6. Representations Concerning Employees 7.4.7. Litigation and Compliance With Law, Etc. 7.4.8. A Mixed Bag of Warranties 7.5. The Purchaser’s Representations 7.5.1. Negotiating on the Seller’s Behalf 7.5.2. Symmetrical Schizophrenia Chapter 8 Covenants, Conditions And Closings 8.1. Is This Chapter Necessary? 8.1.1. Yes—And the Culprit is the Deferred Closing 8.1.2. Still Need Convincing? Check These Examples 8.2. Covenants Pending the Closing 8.2.1. The Elusive Concept of “Best Efforts” 8.2.2. The Non-Negotiated Article 8.2.3. Specific Covenants 8.3. Conditions of the Closing 8.3.1. Some Random Thoughts 8.3.2. Specific Conditions 8.3.3. The Disquieting Comfort Letter 8.4. Legal Opinions 8.4.1. Exquisite Sensitivities and Popular Sidesteps 8.4.2. Facing Up to Disclaimers 8.4.3. The Litigation Advisory 8.4.4. The Proper Subject Matter of Opinions 8.5. Providing For the Closing (Or Lack Thereof) 8.5.1. Pinning Down A Closing Date 8.5.2. Letms Call the Whole Thing Off Chapter 9 Registration Rights 9.1. The Legal Backdrop for Negotiating Registration Rights 9.1.1. Restricted Stock Under Rule 144 9.1.2. Contractual Provisions Regarding Restricted Securities 9.1.3. The Concept and Consequences of Registration 9.1.4. Preparing for the Negotiation 9.2. The Negotiating Variables 9.2.1. Demand vs. Piggy-back Rights 9.2.2. Some Matters of Timing 9.2.3. The Numbers Game—Shares and Registrations 9.2.4. Mind Your Manners of Sale 9.2.5. Effective for the Duration 9.2.6. Paying the Piper—Expenses and Indemnification 9.2.7. Mostly Mechanical Provisions 9.3. A Keyhole View of Two Sample Negotiations 9.3.1. Representing the Purchaser 9.3.2. Representing the Selling Stockholders 9.4. Registration Provisions In A Rule 145 Transactions Chapter 10 Indemnification 10.1. Holding the Purchaser Harmless 10.1.1. The Scope of the Indemnity 10.1.2. The Indemnifiable Amount 10.2. The Seller Strikes Back 10.2.1. The Age-Old Craft of Basketry 10.2.2. Cut-off On Claims 10.2.3. Seeking Fulfillment-With Stock 10.2.4. Additional Seller Gimmickry 10.2.5. Control of Third Party Proceedings 10.2.6. Joint or Several Liability 10.3. Escrow and Other Collection Devices 10.3.1. Holdbacks and Set-offs 10.3.2. The Care and Feeding of Escrows Chapter 11 Employment Contracts And Miscellany 11.1. Miscellaneous Contractual Provisions and Exhibits 11.1.1. Finders’ Fees and Other Expenses 11.1.2. A Glance at Some Boilerplate 11.1.3. Exhibits to the Agreement 11.2. Employment Contracts 11.2.1. ARE employment Contracts Necessary or Desirable? 11.2.2. When Should the Employment Contract be Negotiated? 11.2.3. What Tone Should You Adopt? 11.2.4. How Long Should the Contract Run? 11.2.5. What About the Money Terms? 11.2.6. Under What Circumstances Does the Contract Terminate? 11.2.7. What About the Non-Competition Covenant? Chapter 12 From Signing to Closing 12.1. Investigation and Monitoring 12.1.1. Coordinating the Investigation 12.1.2. Unearthing a Skeleton 12.1.3. Monitoring the Client’s Affairs 12.2. Proxy Statements 12.2.1. The Legal Requisites 12.2.2. The Virtues of Early Preparation 12.2.3. Some Notes on Disclosure Problems 12.3. Dealing with Third Parties 12.3.1. Financial Institutions 12.3.2. Other Consents 12.4. Problem at the Closing 12.4.1. Disclosing the Missing Consent 12.4.2. The Purchaser’s Reaction 12.4.3. Exploring the Unwaivable Condition Chapter 13 Three Special Situations 13.1. Purchase of a Division 13.1.1. The Jaundiced Eye Meets Deep Throat 13.1.2. Some Divestiture Nuances 13.1.3. Gauging the Operating Results 13.2. Buying A Controlling Interest 13.2.1. A Brief Survey of the Problem Area 13.2.2. Protective Provisions for the Seller 13.2.3. The Purchaser’s Concerns 13.3. Merger of A Controlled Company 13.3.1. The Key Themes of Fairness and Full Disclosure 13.3.2. The Use of Independent Professionals 13.3.3. Style as Well as Substance Chapter 14 A Guided Tour THE SOFTWARE CAPER A Melodrama in Three Acts ACT ONE: Let’s Make A Deal: The Journey From Initial Negotiations Through The Letter Of Intent Scene 1—The Germ of an Idea Scene 2—Fencing for Position Scene 3—Getting Down to Brass Tacks Scene 4—Putting it in Black and White Scene 5—Buttoning it Up ACT TWO: Signed, Sealed And Delivered: Taking Us From Contract Negotiations To The Signing Of The Acquisition Agreement Scene 1—Who is this Masked Man? Scene 2—Baiting the Trap Scene 3— What Do they Teach These Kids in Law School Nowadays? SCene 4—Oil on the Troubled Waters Scene 5— Laying the Groundwork Scene 6—The Stage is Set Scene 7— St. Crispin’s Day Scene 8—What Can We Give Them? Scene 9—What Can We Get Them? Scene 10—They Laying-on of Hands Scene 11—Between us Professionals . . . Scene 12—Never Leave Well Enough Alone Scene 13—Get Cracking Scene 14—Congratulations ACT THREE: Here’s The Key To Planet: A View Of The Period After The Signing Through The Closing Scene 1—The Gathering Clouds Scene 2—Consorting with the Enemy Scene 3—Seeds of the Cover-up Scene 4—Reason Prevails Scene 5—In the Nick of Time Scene 6—The Moment of Trust Scene 7—The Big Stall Scene 8—The Main Event INDEX

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''Magnificent ... An indispensable desk book for acquisition lawyers." —Martin Lipton; Wachtell, Lipton Rosen & Katz, New York