May 2011 ACC Docket 100 Issues To Clarify With Your M&A Counsel Fletcher Gottfried

May 2011

INSIDE:Canadian Briefings

Worst: D&O Protection and the Major Corporate Lawsuit

M&A Counsel • Litigation 101 • Class Action Stats • Records Management

Early Data Assessment • Social Media & Employees • Valuing Litigation

Preparingfor the

BY FRANK FLETCHER AND KEITH E. GOTTFRIED

You are in-house counsel at ACME Manufacturing Corporation, a leading publicly held manufacturer of widgets based in California’s Silicon Valley with close to a $1 billion in market capitalization. As the only other in-house counsel at ACME other than the general counsel, your responsibilities include securities compliance, corporate governance and board matters. In addition, to the extent that ACME considers or pursues any mergers and acquisitions (M&A) transactions, given your past experience as an up-and-coming M&A lawyer with a prominent law firm based in New York City, you are also responsible for shepherding any such transaction and addressing the many legal issues that arise in connection therewith. Assuming that the M&A transaction goes further than a draft letter of intent or term sheet, you may also be responsible for managing the outside counsel that would be retained to represent ACME in connection with the potential M&A transaction.

ACC Docket 53 May 2011


While you recognize that your approach

to M&A is not optimal, there has not been

a compelling reason to alter it, particularly

given that all of the transactions have been

small, low-profile and relatively low-risk. It

has certainly not been lost on you that the

legal bills for ACME’s M&A transactions

have been much higher than they should be,

and you are often puzzled by the large num-

ber of lawyers assigned to small transac-

tions. It is also clear to you that many trans-

actions took much longer to negotiate than

should have been the case, as your outside

counsel was unduly intransigent with op-

posing counsel on a number of deal points.

Further, if you had been asked, you would

have indicated some of the deal points as

insignificant to ACME. Undoubtedly, your

outside M&A counsel has been success-

ful in having every acquisition agreement

include extremely one-sided, buyer-friendly

indemnification provisions — even though

you are a company that has never pursued,

nor had reason to pursue, a post-closing

indemnification claim against a seller. With

respect to one transaction, it took almost a

year to acquire a small company since the

respective outside counsel were constantly

at war with each other with no referee. By

the time the transaction was closed, the

products of the company acquired had lost

significant market share (and its pipeline

had shrunk significantly), and accordingly,

ACME’s ability to profit from the deal was

adversely affected due to the market shift.

Now your approach to M&A is about

to get its long overdue impetus for change.

The GC has just informed you that ACME

is about to embark on a review of strategic

alternatives to enhance shareholder value

that may include the possible sale of ACME. A major

investment banking firm has been retained to assist

the company in its review of strategic alternatives. The

near-term plan is for the investment bankers to initiate

an auction process and seek indications of interest from

potential buyers. An auction form of acquisition agree-

ment will need to be prepared so that potential buyers

can review and comment on it, and submit their marked-

up agreement with their indication of interest. The cur-

rent plan is to sell ACME in an all-cash public company

transaction pursuant to a tender offer by the buyer for

all of ACME’s outstanding shares. A tender offer has

The majority of the M&A transactions

that ACME has completed over the past few

years have been relatively small “nip and

tuck” acquisitions, typically structured as

either stock or asset purchases. None of the

companies that ACME has acquired have

been public companies, though a few of the

acquisitions were material enough to war-

rant a Form 8-K filing with the US Securities

and Exchange Commission (SEC). While

any M&A transaction can result in unin-

tended consequences, good or bad, none of

the completed transactions were of the “bet

the company” variety. None of these transac-

tions involved the use of investment bankers,

other non-legal advisors, nor any regulatory

or other government approvals.

Your modus operandi, which the general

counsel has not taken issue with, has typi-

cally been to rely almost completely on out-

side counsel to handle all of ACME’s M&A

transactions even though you have expert

M&A experience. After all, these transac-

tions have not been “bet the company”

transactions. Since the fees and expenses

of outside counsel for an M&A transaction

do not come out of your legal department’s

budget, there has been little incentive for

you to handle any of the legal work in-

house. As only one of two in-house lawyers

at ACME, you have numerous other in-

house responsibilities — some of which are

not, from a practical perspective, capable of

being outsourced to outside counsel. Nor is

there a budget for such outsourcing. Given

that your former law firm handles most of

the M&A transactional work, you have the

utmost trust and confidence in your outside

M&A counsel to perform due diligence, ne-

gotiate the acquisition and ancillary agree-

ments, prepare closing documents and close the transac-

tion. Periodically, you will review the draft acquisition

agreement to see what types of representations and war-

ranties ACME is being asked to give, and you may take an

interest in some of the indemnification provisions to make

sure that ACME is appropriately protected in case the

transaction turns into a “mini-disaster.” You might even

eyeball the disclosure schedules prepared by the company

that is being acquired. For the most part, however, you

rely on your former colleagues to do everything necessary

to get the deal done, and ensure that ACME’s interests are

appropriately protected and safeguarded.

FRANK FLETCHER is the general counsel of Nero AG, a developer of

platform-neutral software technology for editing and

managing video, music, photos and other multimedia. Headquartered in

Karlsbad, Germany, Nero has subsidiaries in Hangzhou, China;

Tokyo, Japan; and Glendale, Calif. Fletcher is responsible for all

aspects of the company’s worldwide legal function, including mergers and acquisitions, software

licensing, patents, trademarks, antipiracy and litigation. Prior to

joining Nero, he was a member of the products and technologies law group at Sun Microsystems where he served as chief counsel for the

CPU manufacturing, integrated circuit testing and validation, and

global business services groups. He is available at [email protected].

KEITH E. GOTTFRIED is a partner in the Washington, DC office of

Blank Rome LLP. He concentrates his practice primarily on mergers

and acquisitions, corporate governance, shareholder activism,

securities regulation, NYSE and NASDAQ compliance, and general corporate matters. Gottfried has

worked on a number of high-profile mergers and acquisitions across a

broad range of industries and sectors. Prior to rejoining Blank

Rome, he was the general counsel of the US Department of Housing

and Urban Development, a position to which he was appointed by President George W. Bush and

unanimously confirmed by the US Senate. Previous to that, Gottfried was the GC of Borland Software Corporation in Cupertino, Calif.

He is available at [email protected].


— among other things — roles, responsibilities, expec-

tations, goals and objectives.

Based on our past M&A experiences, we have prepared

a list of 100 issues that should be clarified sooner rather

than later with outside M&A counsel, but are often not ad-

dressed, becoming silent “elephants in the room.”

Assessing qualifications of M&A counsel1. Understand whether M&A counsel have the

necessary competency, experience and depth for

the transaction you are contemplating. Ascertain

whether M&A counsel have experience with the type

of transaction structures that you are considering.

2. Understand whether M&A counsel have not only the

appropriate M&A expertise, but also the appropriate

expertise in any applicable specialty areas, such

as tax, antitrust, litigation, intellectual property,

government contracts and employee benefits.

3. Understand whether M&A counsel will need to

draw on additional legal resources from outside

their firm (e.g., local counsel, regulatory counsel,

Delaware counsel, international counsel, etc.).

4. Understand whether your M&A counsel have the

necessary industry expertise for the transaction

you are contemplating. If not, consider whether

industry expertise is relevant to your transaction.

5. Ask for copies of publicly-filed deal documents

(definitive acquisition agreements, SEC filings, etc.)

for precedent M&A transactions that members

of the proposed “deal team” have prepared.

6. Ask your investment bankers (if already retained)

whether they think your M&A counsel would

be a good fit for the contemplated transaction.

If the answer is no, ask them to recommend

a number of law firms for you to consider.

7. Understand how familiar your intended M&A

counsel is with your company. If historical

knowledge of the company is critical,

consider creating a role in the transaction

for your historical corporate counsel.

8. Confirm that M&A counsel have cleared conflicts

with respect to not just the company, but to all

third parties that may express an interest in a

transaction with the company as well. Also, confirm

that they have cleared conflicts with respect to

each director and officer of the company.

Staffing the transaction9. Understand how M&A counsel intends to staff

the transaction, for example, the mix of associates

and partners and the various legal specialties

that will be called upon from time to time.

the advantage of providing ACME’s shareholders with

a liquidity event earlier, and generally provides greater

certainty of closing, than a one-step cash merger. While

ACME’s board of directors wants to move quickly, the

sale of ACME will likely be a complicated and lengthy

M&A process. The GC has told you that you will be the

legal “quarterback” during this process, and will need to

take an active role in overseeing all legal aspects of it and

the possible transaction. For the next few months, this

M&A process, and any transaction that is derived from

it, will be your highest priority.

You finally have your “bet the company” transaction,

which means that allowing your M&A counsel to go on

“auto-pilot” is no longer appropriate. For the first time

since coming to ACME, you may actually need to draw

on your extensive M&A experience as you seek to man-

age your M&A counsel — making sure that there is a

clear understanding of ACME’s goals and objectives, and

the most optimal path to accomplish them. ACME can-

not risk having its sales process collapse because M&A

counsel got hung up on deal points that are insignificant

or irrelevant to ACME. The contemplated transaction is

also relatively complicated, and given that this is a large

public company transaction, there are fiduciary duty,

SEC compliance and regulatory approval issues that will

all need to be carefully and timely addressed. You are

naturally concerned that the outside lawyers who have

handled ACME’s M&A work in the past may not have the

appropriate depth and experience for the contemplated

transaction. Given the complexity of the contemplated

transaction, the M&A counsel deal team, which consisted

of a few lawyers in the past, would likely be significantly

larger as you will need to draw on lawyers from various

specialties. There is also the possibility that no transac-

tion may ever get done, and the company still ends up

with a huge legal bill. As such, careful management of

legal fees should also be addressed.

This scenario may seem familiar to many of you. Like

the fictional counsel for ACME, there are few situa-

tions that are more demanding and taxing on in-house

counsel than a “bet the company” or significant M&A

transaction. There are also few situations where out-

side counsel is required to develop a closer and more

intimate relationship with its corporate client and

in-house counsel than a significant M&A transaction.

While in-house counsel will typically be dependent on

outside M&A counsel for most of the day-to-day draft-

ing and negotiating of transaction agreements, and the

preparation of related SEC and other regulatory filings,

it is important that the relationship between in-house

and outside M&A counsel be appropriately clarified and

calibrated. This way, there is a clear understanding of


We want to hear from you! Visit the Client Service section of our new website, and take our on-line client survey to tell us how we can better serve you. We’ve also added great new resources to help you with various aspects of your business, including industry-related blogs that will keep you informed of the latest legal trends. Visit our new website at fbtlaw.com

400 West Market Street | Suite 3200 | Louisville | 800-757-4094 | Offices in Indiana, Kentucky, Ohio, Tennessee and West Virginia. THIS IS AN ADVERTISEMENT. ©2011 Frost Brown Todd LLC. All rights reserved.

Legal fees and expenses18. Understand whether M&A counsel would

consider discounting standard hourly rates.

19. Understand whether M&A counsel would consider

any alternative fee billing arrangements.

20. Determine whether to have M&A counsel comply

with any formal billing policy of the company’s

legal department with respect to outside counsel

fees (whether existing or to be created and

implemented). For example, will M&A counsel

bill for travel time or multiple attorneys attending

the same meeting? What about internal status

conference calls where multiple attorneys (but

not client representatives) are present?

21. Understand what kind of expenses M&A counsel

expects you to be responsible for (e.g., word

processing, fax and copy charges, secretarial

overtime, overhead allocations, etc.).

22. Consider whether to have M&A counsel

agree to your legal department’s expense

reimbursement policy, be it an existing one or

one that would be created and implemented

in the wake of this new matter.

10. Ask to have all the proposed lawyers identified

in advance and request copies of each of their

bios. Set up a notification or approval process

for new lawyers to be added to the team.

11. Ask to meet all the proposed lawyers before

proceeding with the chosen law firm.

12. Ask for a list with detailed contact information

for the day-to-day transaction-working group.

13. Ask for a list of recent precedent M&A

transactions for each of the proposed

lawyers to be assigned to the matter.

14. Understand which lawyers will be

responsible for the majority of the work.

15. Understand which lawyer will be your

primary day-to-day contact.

16. Understand whether the partner at the law

firm that “pitched” you for the role of M&A

counsel will be involved in the transaction, or

if he will pass it off to another colleague.

17. Inquire of any near-term commitments

(vacation, etc.) that may make one or two of

the key members of your M&A legal team

unavailable at an inopportune time.


Timing32. Explain to M&A counsel what the company’s

expectations are with respect to timing (e.g.,

timing of negotiations, board and other

internal approvals, signing of definitive

agreements, closing of transaction, etc.).

33. Discuss with M&A counsel whether the company’s

timing expectations are reasonable and/or realistic.

If not, discuss strategies for communicating

that to the board and/or management.

34. Consider whether to ask M&A counsel for

a detailed week-by-week timetable for the

completion of the transaction. Ask M&A counsel

to footnote any such timetable with a discussion

of circumstances under which such a timetable

may not be met. Discuss how often the detailed

timetable should be updated and circulated.

35. Discuss with M&A counsel how deviations

from the projected timetable will be

communicated and addressed.

Communication protocols36. Discuss with M&A counsel the protocols

for communications between M&A

counsel and in-house counsel.

37. Discuss with M&A counsel the protocols

for communications between M&A counsel

and the company’s non-legal personnel.

38. Discuss with M&A counsel how the internal and

external deal teams should best communicate

with each other and collaborate (weekly

conference calls, email, online document

work spaces, instant messaging, etc.).

39. Discuss with M&A counsel whether they should be

contacting individuals inside your company without

going through in-house counsel. At a minimum,

you should be copied on all such communications.

40. Discuss with M&A counsel whether they

should be communicating directly with your

CEO or CFO. At a minimum, you should

be copied on all such communications.

Chain of command41. Discuss with M&A counsel the chain of

command from the company to the outside

counsel, and clarify who outside counsel

should be taking its marching orders from.

42. Discuss with M&A counsel how the

chain of command will be communicated

to all involved parties.

23. Understand how often M&A counsel

will invoice you.

24. Clarify with M&A counsel how often you

expect to receive updates of fees incurred

(weekly, biweekly, monthly, etc.).

25. Consider whether to have your CFO meet with

M&A counsel to discuss anticipated legal fees.

Consider also that the more involved your CFO is

in the retention and fee negotiation process, the

less chance that you as in-house counsel can be

reasonably accused of blindsiding the executive

team with unanticipated costs. Also, your CFO

may be able to play the role of “bad cop” and

can put the “hammer down” for cost controls.

26. Consider whether to have M&A counsel

provide a forecast or budget for legal fees to be

incurred in connection with the transaction or

particular stages thereof (e.g., due diligence,

confidentiality and other preliminary agreements,

definitive agreements, SEC filings, closing of

the transaction, etc.). Would such a forecast or

budget be helpful? Would M&A counsel be held

accountable to such a forecast or budget?

27. Discuss with M&A counsel partnering opportunities

with your legal department as a way to reduce

fees and expenses.

28. Discuss with M&A counsel partnering opportunities

with your day-to-day corporate counsel, such that

any learning curve issues (and the fees that would

be incurred as a result thereof) can be avoided.

29. Discuss with M&A counsel whether it or the

company should consider retaining temporary

or contract attorneys as a way to reduce fees

and expenses. This could help to avoid unduly

consuming internal legal resources otherwise

needed to close the business transactions

that keep your company in business.

Retention of other advisors30. Discuss with M&A counsel the need for the

company to retain any other external advisors

(e.g., investment bankers, accountants

and auditors, valuation experts, etc.).

31. Discuss with M&A counsel who will be responsible

for reviewing and commenting on the engagement

letter agreements with other external advisors.

International Society of Primerus Law Firms

171 Monroe Avenue, NW, Suite 750

Grand Rapids, Michigan 49503

1.616.454.9939 | www.Primerus.com

We’re going global.

With over 175 law fi rms in 25 countries, and more joining every day, Primerus is

quickly becoming the go-to source for clients seeking legal services around the world.

As a society of independent boutique law fi rms with more than 2,500 attorneys,

you can count on us for:

• Excellent work product

• Personalized service

• Reasonable fees

• Legal advisors with expertise in hundreds of practice areas.

Discover Primerus today.

Call 616.454.9939 for more information.


55. Communicate to M&A counsel the extent that

time is of the essence, and explain why.

Risks56. Discuss with M&A counsel the risks

(legal and business) to the company

of pursuing the transaction.

57. Discuss with M&A counsel the potential

litigation risks to the company (and the

board) of pursuing a transaction and the

risks of not pursuing a transaction.

58. Discuss with M&A counsel various strategies for

mitigating the anticipated risks to the transaction.

59. Discuss with M&A counsel whether any

insurance should be considered to mitigate

any legal risks of the transaction (e.g.,

representation and warranty insurance).

60. Discuss with M&A counsel the risks to the

company in pursuing a transaction. If a sale of the

company is being pursued, there is the possibility

of talent leakage as the process continues. This

can be mitigated, to some extent, by the adoption

and implementation of retention plans.

61. Discuss with M&A counsel the potential harm to the

company if the transaction is not completed. This

includes the fact that the acquiring company might

be a potential competitor, and during the course

of the due diligence process, your company might

provide very sensitive and confidential information,

which could affect the company’s ability to compete

with such competition if the deal is not completed.

Hurdles62. Discuss with M&A counsel the hurdles that the

transaction may need to surmount, including, but

not limited to, regulatory approvals, stockholder

approvals, third-party consents, SEC, etc.

Showstoppers63. Discuss with M&A counsel the potential

“showstoppers” that could cause

the transaction not to occur.

64. Discuss with M&A counsel strategies to

mitigate and avoid any “showstoppers.”

Industry overview65. Provide M&A counsel (and any other external

advisors) with an update on the company’s industry

and recent developments with respect thereto.

43. Clarify with M&A counsel who should be

perceived as the transaction’s quarterback —

the outside counsel or the in-house counsel.

Roles and responsibilities44. Discuss with M&A counsel how roles and

responsibilities will be divided between

in-house and outside counsel.

45. Discuss with M&A counsel whether valuation/

price discussions will be handled by an experienced

in-house team, the investment bankers, executive

management, specialized advisors or M&A counsel.

46. Discuss with M&A counsel who will have

responsibility for setting up and maintaining

the electronic data room –– outside or inside

counsel, paralegals or investment bankers.

47. Discuss with M&A counsel what documents

will be needed for the preliminary stages

of the transaction (e.g., confidentiality and

exclusivity agreements, term sheets and letters

of intent), and clarify who has ownership

over the initial drafting of those documents

and the timing for the preparation thereof.

Visibility of M&A counsel48. Discuss with M&A counsel how visible they should

be to the other side and when they should be

invisible. If the company has an experienced deal

team, then it might be reasonable for the in-house

team to be “front and center.” If the in-house deal

team is less experienced, then it might be reasonable

for M&A counsel to take a more prominent role.

49. Discuss with M&A counsel how visibility or

presence on a telephone call or meeting could

affect the dynamics of the discussions.

Goals and objectives50. Discuss the goals and objectives

of the transaction early.

51. Clarify with M&A counsel why the

company is pursuing this transaction.

52. Clarify with M&A counsel how the

proposed transaction syncs with the

company’s business strategy.

53. Clarify with M&A counsel what would need

to occur to make the proposed transaction

less attractive to the company and less of a

fit with the company’s business strategy.

54. Clarify with M&A counsel the extent to which

timing of the transaction affects, if at all, the

goals and objectives of the transaction.


Corporate Finance Mergers and Acquisitions Intellectual Property

Product Liability Defense Energy and Agribusiness Securities Litigation

Life Sciences Intellectual Property Real Estate

Bankruptcy/Financial Institutions Commercial Litigation Employment and Bene"ts

Minneapolis | Denver | lindquist.com

Feel good

about your

law "rm.

(e.g., reluctance of some private equity firms

to commit to two-step tender offers and their

preference for one-step merger transactions).

Approvals71. Discuss with M&A counsel what internal

and external approval processes the

transaction may be subject to.

72. Discuss with M&A counsel what internal approvals

are required before proceeding (CEO, CFO, board,

significant or controlling stockholders, etc.).

73. Discuss with M&A counsel possible steps

that could be taken in advance to make

these approvals easier to obtain.

74. Discuss with M&A counsel whether the transaction

will be subject to the Hart-Scott-Rodino

Antitrust Improvements Act of 1976 (HSR).

75. Discuss with M&A counsel whether any HSR

issues can be addressed up front to make sure

the deal is not delayed due to HSR issues.

76. Discuss with M&A counsel the timing and

mechanics for stockholder approvals (e.g.,

preparation and filing of a proxy statement).

Company overview66. Provide M&A counsel (and any other external

advisors) with an update on the company, its

products and services, go-to-market strategy, M&A,

corporate development, and other growth plans

and recent developments with respect thereto.

Transaction structures67. Clarify with M&A counsel the various transaction

structures that can potentially satisfy the company’s

objectives. Consider whether to involve other

C-level executives in these discussions (e.g.,

CFO, treasurer, corporate development, etc.).

68. Understand from M&A counsel the tax

consequences of the various transaction

structures under consideration.

69. Discuss with M&A counsel how the various

transaction structures under consideration

affect the timing of the transaction.

70. Discuss with M&A counsel how the various

transaction structures under consideration would

affect the ability of the company to attract a buyer


82. Discuss with M&A counsel any lead times

applicable to providing board and/or

committee members with briefing materials

in connection with an M&A transaction.

83. Discuss with M&A counsel whether in-house or

outside counsel will have responsibility for preparing

materials that will be distributed to the company’s

board of directors (e.g., agreement summaries,

fiduciary duty memos, reasons for transaction, risks

of the transaction, proposed resolutions, etc.).

Definitive agreements84. Discuss with M&A counsel what definitive

agreements would be customary for the

transaction structure being contemplated.

85. Discuss with M&A counsel whether in-house or

outside counsel will have primary responsibility

for the initial drafts of the definitive agreements.

86. Discuss with M&A counsel the timing for the

preparation of the initial drafts of the definitive

agreements.

87. Discuss with M&A counsel what process should

be followed for having the initial drafts of the

definitive agreements reviewed and discussed


regulatory approvals or notifications will need

to be obtained or made in connection with

the transaction, and the timing thereof.


third-party consents or notices will need

to be obtained or given in connection with

the transaction, and the timing thereof.

Board and governance issues79. Discuss with M&A counsel what board of

directors and governance issues will need to be

addressed as the transaction unfolds (the need

for board and/or committee meetings, board

presentations, board authorizations, etc.).

80. Discuss with M&A counsel the current schedule for

board and/or committee meetings and determine

the need for any special meetings to be scheduled.

81. Discuss with M&A counsel what fiduciary duties

will be applicable to members of the company’s

board of directors and what steps will need to

be taken to ensure that board members comply

with their fiduciary duties under applicable law.

ACC Docket

• Distressed Acquisitions: How You Can Create Value

During Difficult Times (April 2010). Read this article to

learn how to reshape the business with a well-structured

acquisition and restructured relationships with key

stakeholders. www.acc.com/docket/dis_acq_apr10

• Bet the Company: Litigation from a Policyholder’s

Perspective (May 2009). This article empowers policyholders

and offers guidance on how to persevere when litigation

hits. www.acc.com/docket/lit-ph-persp_may09

Quick References• Top Things to Know About M&A Involving Intel

Companies (April 2010). This article discusses the

top things to understand when undertaking the

acquisition of an intelligence agency contractor.

www.acc.com/quickref/m&a-intel_apr10

• Top Ten Indemnification Concerns in M&A Transactions

(Mar 2009). This ACC Top Ten focuses on the more

complicated side of indemnification concerns, which usually

is the business buyer’s side, of mergers and acquisitions.

www.acc.com/quickref/indem-m&a_mar09

Article• Look Before You Leap (Oct. 2010). This third edition of

Deloitte’s “Look Before You Leap” survey focuses on the

use of background/integrity checks when considering a

business relationship, investment or acquisition outside

of the United States. www.acc.com/look-leap_oct10

Resources• ACC Compliance Training Portal. The ACC Compliance

Training Portal provides information and resources

on a wide range of compliance issues that affect your

everyday professional life. With this helpful online

tool, you can provide the best ethics and compliance

advice to your client. www.ethicsxchange.com

ACC has more material on this subject on our website.

Visit www.acc.com, where you can browse our resources

by practice area or search by keyword.

The new GLD button lets you click to copy, print or email

a checklist from certain ACC online resources.

ACC Extras on… Issues to Clarify with Your M&A Counsel

Whether you’re looking

for a highly skilled legal

secretary or a litigation

paralegal for a full-scale

document review...

You’re covered.

Our company ranked #1 in our industry in both innovation and quality of services on FORTUNE® magazine’s “World’s Most Admired Companies” list.

1.800.870.8367

Robert Half Legal has over 215,000 skilled legal professionals available on a full-time,

temporary or project basis. We’ve earned a reputation for outstanding customer service

and professionalism. Find out more at roberthalflegal.com/testimonials.So

urc

e: F

OR

TU

NE

, M

arch

21

, 2

011

©

201

1 R

ober

t H

alf

Leg

al.

A R

ober

t H

alf

Com

pan

y. A

n E

qu

al O

pp

ortu

nit

y E

mp

loye

r. 0

31

0-5

00

8a

ACC members, take advantage of your Alliance discount.


SEC filings98. Discuss with M&A counsel whether in-house or

outside counsel will have primary responsibility

for preparing the initial drafts of the various

SEC documents that will need to be prepared in

connection with the transaction (e.g., Form 8-K’s,

proxy statements, tender offer documents, etc.).

99. Discuss with M&A counsel what SEC clearance

processes will need to be followed in connection

with the transaction and how those processes

could affect the timing of the transaction

and the choice of transaction structure.

100. Discuss with M&A counsel any open or past

SEC issues that could affect the timing of the

SEC’s review of any documents filed by the

company in connection with a transaction

(e.g., unresolved comments on your

company’s annual report on Form 10-K).

Shepherding the “bet the company” can be successful

Shepherding a significant or “bet the company” M&A

transaction can be one of the most exciting events in the

career of an in-house counsel. A tremendous amount of

additional responsibility is quickly placed at the feet of

in-house counsel, but with that responsibility comes the

opportunity to evolve and/or change the future of your

company forever, as M&A often does. Given the huge

amount of legal, logistical and other work involved in

driving an M&A transaction to successful completion,

it requires an intense amount of partnering between in-

house counsel and other internal colleagues, with outside

M&A counsel. We hope the 100 items listed above will

provide in-house counsel with a useful roadmap for those

issues that need to be clarified sooner rather than later

with outside M&A counsel. Following this roadmap leads

to a clear understanding of, among other things, roles and

responsibilities, expectations and goals, and objectives.∑

Have a comment on this article? Visit ACC’s blog

at www.inhouseaccess.com/articles/acc-docket.

with internal groups at the company. For example,

the representations and warranties with respect

to financial statements and other financial

information should be discussed with, and

reviewed by, the finance and accounting groups.

Disclosure schedules88. Discuss with M&A counsel whether in-

house or outside counsel will have primary

responsibility for preparing the initial

draft of the disclosure schedules.

Deal protection issues89. Understand from M&A counsel what deal

protection devices are available to the

company to protect the transaction.

90. Discuss with M&A counsel what the

current legal landscape is with respect to the

enforceability of deal protection devices.

91. Review with M&A counsel the strategic

players that might be expected to attempt to

interfere with any significant M&A transaction

that might be pursued by the company.

Transaction negotiations92. Discuss with M&A counsel who will have the lead

in negotiating the terms of the definitive agreements.

93. Discuss with M&A counsel what the

negotiating approach and strategy will be.

94. Discuss with M&A counsel which issues

in the definitive agreement are particularly

sensitive to the company and which are not.

95. Ensure M&A counsel have clarity on the

issues that the company does not want

to allow the deal to get hung up on.

Disclosure issues96. Clarify with M&A counsel when the company

would be required to publicly disclose that

it is pursuing an M&A transaction.

97. Clarify with M&A counsel whether the company

or outside counsel would be responsible

for preparing press releases and other

communications related to an M&A transaction.

May 2011 ACC Docket 100 Issues To Clarify With Your M&A Counsel Fletcher Gottfried

Education

Transcript of May 2011 ACC Docket 100 Issues To Clarify With Your M&A Counsel Fletcher Gottfried