Deal Tales. Volume 1. John Jenkins

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Prudence Merritt
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1 Deal Tales Volume 1 John Jenkins 1

2 Table of Contents 1. This is the Business We've Chosen Off the Record, On the QT, and Very Hush Hush Part I Off the Record, On the QT, and Very Hush Hush - Part II Don t Ask, Don t Waive & The Three Wise Monkeys Problem Confidentiality Agreement Practice Points I Hate Letters of Intent Letter of Intent: Practice Points Beat the Clock: The Risk of Delay in M&A Merger Arbitrage: You Guys All Look Like Poker Chips to Me Negotiating Value Protection Terms Strategic Sandbagging: Let the Buyer Beware Disclaimers & Limits on Claims Outside of the Contract The Art of Board Presentations Board Packages: Good Inputs Lead to Good Outputs Telephonic Board Meetings

3 16. Now, Therefore, It Is RESOLVED: Drafting Board Resolutions Practice Points for Drafting Resolutions Bored Meetings Working With Divided Boards Board Minutes for M&A: Tips & Pitfalls Artful Dodging: Avoiding Stockholder Votes in M&A Mergers: One Step or Two? Tender Offers: Still a Few Bugs in the System Sign & Consent: The Dealmaker s Kluge Sign & Consent Practice Points Tortious Interference: Don t Be Evil Tortious Interference: Don t Be Evil, Part II Practice Points: Avoiding Tortious Interference Claims Be Afraid, Be Very Afraid: Fraudulent Transfer Statutes Lyondell: One Bad Apple Ruins the Whole Bunch The Waiting Is the Hardest Part: HSR Premerger Notification HSR s Many Traps for the Unwary

4 33. M&A Valuation: Net Present Value of Future Cash Flows M&A Valuation: Estimating Cash Flow & Terminal Value M&A Valuation: Discount Rates M&A Valuation: Direct Comparisons Dividends & Buybacks: Delaware s Legal Capital Maze Nothing but Blue Sky, Smilin at Me Nothin But Blue Sky Do I See A Date with Destiny: Record Dates, Mailing Dates, Meeting Dates A Date with Destiny: Dividends

5 Deal Tales Volume 2 John Jenkins 1

6 Table of Contents 1. It Would Be Cool To Be a Consiglieri A Little Deal Tact Goes a Long Way Due Diligence: Aim Before You Fire First Drafts: On the 2-Yard Line or Closer to Midfield? Boy, Could This Deal Use A Few More 000s! Practice Points for Small Company M&A It s Groundhog Day! Disclosing Negotiations Practice Points for Dealing with Leaks Disclosure: It s Different for Tender Offers Disclosure in Appraisal Notices Disclosure in Private Company M&A Practice Points for Private Company Disclosure Barstool Stories: Proceed as If I Were Dead Do I Have To? The Duty to Disclose Materiality: Hard Information Materiality: Contingencies Materiality: Ripe for Disclosure

7 18. Materiality & Duty to Speak: It s Complicated M&A Communications: The Rules of the Road M&A Communications: The SEC & Social Media Using Social Media in M&A Successor Liability: Quick & Dirty Is a Change-in-Control an Assignment? Practice Points: Change-in-Control Clauses Barstool Stories: Ol Blue Eyes M&A Tax Basics M&A Tax Basics: Tax-Free Structures M&A Tax Basics: Taxable Deals You re Going the Wrong Way! Corporate Torts: You re Still on the Hook Form D: When s the Sale Date? Common Stock? Common Shares? State Takeover Laws & Friendly Deals Going Dark: Welcome to the Hotel California Rights Offerings? Wrong Idea

8 36. Piercing the Corporate Veil What Happened to Bulk Sales Laws?

9 Deal Tales Volume 3 John Jenkins 1

10 Table of Contents 1. Virginia Bankshares: Yeah, Well, That s Just, Like, Your Opinion, Man Fait v. Regions Financial: Accounting Judgments as Opinions The Business Judgment Rule: What a Long, Strange Trip It s Been Technicolor: The Thing That Ate The Duty of Care Omnicare: Process, Not Substance? Unocal: Exceptions to the Business Judgment Rule Expand Revlon Escapes Its Boundaries Entire Fairness Relentless Mission Creep The 2000s: Nothing Was Different, but Everything Had Changed Delaware: Right Back to Where We Started From? Appraisal Rights: Corporate Law s Consolation Prize P&G, Gillette & The Eccentricities of Appraisal Rights That Time I Filed The S-1 That I Wasn't Supposed To

11 14. A Little History Won t Kill You: Merger Waves A Little History Won t Kill You: The Roaring 80s & Today M&A Agreements: The Preliminaries M&A Agreements: Representations & Warranties M&A Agreements: Pre- & Post-Closing Covenants M&A Agreements: Conditions MAC Clauses & Termination Reverse Break-Up Fees: Move Along, Nothing to See Here We Are Not Potted Plants Private Offerings: Traditional Privates Private Offerings: PIPEs Private Offerings: Rule 144A The Horror The Horror: Section 16 of the Exchange Act Bar Room Stories: My CLM Can Beat Up Your CLM M&A Securities Registration M&A Proxy Compliance Mechanics of Tender Offers

12 31. The OTC: Abandon Hope, All Ye Who Enter Here No Can Do Ron Those Who Can t Do, Teach: A Decade as an Adjunct Closings: Then & Now

M&A ACADEMY CHOOSING AN ACQUISITION STRUCTURE AND STRUCTURING A DEAL

M&A ACADEMY CHOOSING AN ACQUISITION STRUCTURE AND STRUCTURING A DEAL Agenda Overview of the Acquisition Process Basic Forms of Acquisitions Basic Issues To Consider In Structuring The Deal Select Public