Make the Deal: Negotiating Mergers and Acquisitions

No deal is like another. And any one deal can take various legal shapes, but you do not have a deal until you have a structure. Depending on the legal terms used, what seems like a straightforward business proposition can have highly disparate economic outcomes. To navigate this process successfully, the lawyer has to think in business terms and the business person has to understand the function and potential of the different legal elements that make the deal.

In Make the Deal, Mergers and Acquisition pundit Christopher S. Harrison combines business, finance, and legal expertise to provide an essential and highly accessible overview of the complicated and often labyrinthous M&A process. Showing how legal form conditions the economic outlook, he reveals what it takes to support a business strategy with a legal framework and what the economic ramifications of specific deal terms and their interrelations might be.

Intended as a tool for both business leaders and lawyers as well as students who aspire to such roles, Make the Deal not only offers a comprehensive and comprehensible compendium of deal terminology, but also provides a road map of how the various terms interact, how to negotiate one point with all the others in mind, and how to organize a successful deal process. Compelling war stories highlight what is at stake. Sample provisions give examples of clear, effective deal language. And easily readable graphics synthesize exhaustive deal study data to give the practitioner and the student a keen sense for the realities of the M&A market.

Make the Deal is a direct and accessible guide to striking a powerful M&A deal. Merging business, finance, and law, this insightful examination of M&A strategy is designed to help you understand M&A negotiations and the ways in which the final outcome affects your financial future. A general overview of an acquisition agreement framework segues into a more detailed discussion of different deal structures, including stock sales, mergers, asset sales, and complex structures, giving you the information you need to know when each one applies best in practice. You’ll gain insight into real-world negotiations and the delicate balancing act that occurs as each party attempts to maximize value and minimize risk, and learn the potential pitfalls that can occur. Negotiation statistics and samples from actual contracts back the war stories throughout, and reinforce the idea that there’s no single perfect solution.

As a topic of study, M&A is constantly evolving; in practice, it changes at the speed of light. Staying ahead of the market is the single most critical element of making the best deal, and the strategy that worked for one deal most likely won’t work for the next. Instead of simply providing a list of strategies that have worked in the past, this book shows you why they worked, so you can tailor your strategy specifically to your next deal.

• Learn how M&A contract terms affect economic outcomes
• Examine the techniques and mechanics of today’s acquisition agreements
• Develop a legal framework that supports your business strategy
• Follow the ups and downs that arise in real-world cases

A successful M&A transaction requires both attention to detail and a big picture view, combined with skill, intellect, and ingenuity. Make the Deal brings it all together to show you how to run the table and come away with a win.

Table of Contents

About the Author vii

CHAPTER 1 Introduction to Deal-Making 1

Deal-Making in Practice

CHAPTER 2 Setting Up the Deal 7

Overview and Confidentiality Agreements

CHAPTER 3 Setting Up the Deal 33

Key Provisions and Agreements

CHAPTER 4 Architecture of the Acquisition Agreement 55

CHAPTER 5 Purchase Price 67

CHAPTER 6 Representations and Warranties 87

CHAPTER 7 Covenants 117

CHAPTER 8 Closing Conditions 131

CHAPTER 9 Termination Rights 149

CHAPTER 10 Material Adverse Effect 161

CHAPTER 11 Equity and Debt Commitment Letters 181

CHAPTER 12 Financing Risk 187

CHAPTER 13 Topping a Public Merger 217

CHAPTER 14 Indemnities 245

CHAPTER 15 Dispute Resolution 273

CHAPTER 16 Structuring M&A Deals 281

Index 309