A discussion on how to work effectively with M&A counsel.

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2. BY FRANK FLETCHER AND KEITH E. GOTTFRIED

3. 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.
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53 May 2011

4. While you recognize that your approach
The majority of the M&A transactions
to M&A is not optimal, there has not been
that ACME has completed over the past few
a compelling reason to alter it, particularly
years have been relatively small “nip and
given that all of the transactions have been
tuck” acquisitions, typically structured as
FRANK FLETCHER is the general
small, low-profile and relatively low-risk. It
either stock or asset purchases. None of the
counsel of Nero AG, a developer of
platform-neutral software
has certainly not been lost on you that the
companies that ACME has acquired have
technology for editing and
managing video, music, photos and
legal bills for ACME’s M&A transactions
been public companies, though a few of the
other multimedia. Headquartered in
have been much higher than they should be,
acquisitions were material enough to warKarlsbad, Germany, Nero has
subsidiaries in Hangzhou, China;
and you are often puzzled by the large numrant a Form 8-K filing with the US Securities
Tokyo, Japan; and Glendale, Calif.
ber of lawyers assigned to small transacand Exchange Commission (SEC). While
Fletcher is responsible for all
aspects of the company’s
tions. It is also clear to you that many transany M&A transaction can result in uninworldwide legal function, including
actions took much longer to negotiate than
tended consequences, good or bad, none of
mergers and acquisitions, software
licensing, patents, trademarks,
should have been the case, as your outside
the completed transactions were of the “bet
antipiracy and litigation. Prior to
counsel was unduly intransigent with opthe company” variety. None of these transacjoining Nero, he was a member of
the products and technologies law
posing counsel on a number of deal points.
tions involved the use of investment bankers,
group at Sun Microsystems where
he served as chief counsel for the
Further, if you had been asked, you would
other non-legal advisors, nor any regulatory
CPU manufacturing, integrated
have indicated some of the deal points as
or other government approvals.
circuit testing and validation, and
global business services groups. He
insignificant to ACME. Undoubtedly, your
Your modus operandi, which the general
is available at ffletcher@nero.com.
outside M&A counsel has been successcounsel has not taken issue with, has typiful in having every acquisition agreement
cally been to rely almost completely on outinclude extremely one-sided, buyer-friendly
side counsel to handle all of ACME’s M&A
indemnification provisions — even though
transactions even though you have expert
you are a company that has never pursued,
M&A experience. After all, these transacnor had reason to pursue, a post-closing
tions have not been “bet the company”
indemnification claim against a seller. With
transactions. Since the fees and expenses
respect to one transaction, it took almost a
of outside counsel for an M&A transaction
year to acquire a small company since the
do not come out of your legal department’s
respective outside counsel were constantly
budget, there has been little incentive for
at war with each other with no referee. By
you to handle any of the legal work inthe time the transaction was closed, the
house. As only one of two in-house lawyers
products of the company acquired had lost
at ACME, you have numerous other insignificant market share (and its pipeline
house responsibilities — some of which are
had shrunk significantly), and accordingly,
not, from a practical perspective, capable of
ACME’s ability to profit from the deal was
being outsourced to outside counsel. Nor is
adversely affected due to the market shift.
there a budget for such outsourcing. Given
Now your approach to M&A is about
that your former law firm handles most of
to get its long overdue impetus for change.
the M&A transactional work, you have the
The GC has just informed you that ACME
utmost trust and confidence in your outside
is about to embark on a review of strategic
M&A counsel to perform due diligence, nealternatives to enhance shareholder value
gotiate the acquisition and ancillary agreethat may include the possible sale of ACME. A major
ments, prepare closing documents and close the transacinvestment banking firm has been retained to assist
tion. Periodically, you will review the draft acquisition
the company in its review of strategic alternatives. The
agreement to see what types of representations and warnear-term plan is for the investment bankers to initiate
ranties ACME is being asked to give, and you may take an
an auction process and seek indications of interest from
interest in some of the indemnification provisions to make
potential buyers. An auction form of acquisition agreesure that ACME is appropriately protected in case the
ment will need to be prepared so that potential buyers
transaction turns into a “mini-disaster.” You might even
can review and comment on it, and submit their markedeyeball the disclosure schedules prepared by the company
up agreement with their indication of interest. The curthat is being acquired. For the most part, however, you
rent plan is to sell ACME in an all-cash public company
rely on your former colleagues to do everything necessary
transaction pursuant to a tender offer by the buyer for
to get the deal done, and ensure that ACME’s interests are
all of ACME’s outstanding shares. A tender offer has
appropriately protected and safeguarded.
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ACC Docket
54 May 2011

5. 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
MA 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
MA 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 MA 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 MA experience as you seek to manage your MA counsel — making sure that there is a
clear understanding of ACME’s goals and objectives, and
the most optimal path to accomplish them. ACME cannot risk having its sales process collapse because MA
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 MA work in the past may not have the
appropriate depth and experience for the contemplated
transaction. Given the complexity of the contemplated
transaction, the MA 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 transaction 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 situations that are more demanding and taxing on in-house
counsel than a “bet the company” or significant MA
transaction. There are also few situations where outside counsel is required to develop a closer and more
intimate relationship with its corporate client and
in-house counsel than a significant MA transaction.
While in-house counsel will typically be dependent on
outside MA counsel for most of the day-to-day drafting 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 MA counsel be appropriately clarified and
calibrated. This way, there is a clear understanding of
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— among other things — roles, responsibilities, expectations, goals and objectives.
Based on our past MA experiences, we have prepared
a list of 100 issues that should be clarified sooner rather
than later with outside MA counsel, but are often not addressed, becoming silent “elephants in the room.”
Assessing qualifications of MA counsel
1. Understand whether MA counsel have the
necessary competency, experience and depth for
the transaction you are contemplating. Ascertain
whether MA counsel have experience with the type
of transaction structures that you are considering.
2. Understand whether MA counsel have not only the
appropriate MA 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 MA 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 MA 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 MA transactions that members
of the proposed “deal team” have prepared.
6. Ask your investment bankers (if already retained)
whether they think your MA 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 MA
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 MA 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 transaction
9. Understand how MA 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.
56 May 2011

6. 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 MA
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 MA
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 MA legal team
unavailable at an inopportune time.
Legal fees and expenses
18. Understand whether MA counsel would
consider discounting standard hourly rates.
19. Understand whether MA counsel would consider
any alternative fee billing arrangements.
20. Determine whether to have MA 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 MA 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 MA 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 MA 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.
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ACC Docket
57 May 2011

7. 23. Understand how often MA counsel
will invoice you.
24. Clarify with MA counsel how often you
expect to receive updates of fees incurred
(weekly, biweekly, monthly, etc.).
25. Consider whether to have your CFO meet with
MA 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 MA 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 MA counsel be held
accountable to such a forecast or budget?
27. Discuss with MA counsel partnering opportunities
with your legal department as a way to reduce
fees and expenses.
28. Discuss with MA 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 MA 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 advisors
30. Discuss with MA 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 MA counsel who will be responsible
for reviewing and commenting on the engagement
letter agreements with other external advisors.
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Timing
32. Explain to MA 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 MA 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 MA counsel for
a detailed week-by-week timetable for the
completion of the transaction. Ask MA 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 MA counsel how deviations
from the projected timetable will be
communicated and addressed.
Communication protocols
36. Discuss with MA counsel the protocols
for communications between MA
counsel and in-house counsel.
37. Discuss with MA counsel the protocols
for communications between MA counsel
and the company’s non-legal personnel.
38. Discuss with MA 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 MA 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 MA 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 command
41. Discuss with MA 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 MA counsel how the
chain of command will be communicated
to all involved parties.
58 May 2011

8. 43. Clarify with MA counsel who should be
perceived as the transaction’s quarterback —
the outside counsel or the in-house counsel.
55. Communicate to MA counsel the extent that
time is of the essence, and explain why.
Risks
Roles and responsibilities
44. Discuss with MA counsel how roles and
responsibilities will be divided between
in-house and outside counsel.
45. Discuss with MA counsel whether valuation/
price discussions will be handled by an experienced
in-house team, the investment bankers, executive
management, specialized advisors or MA counsel.
46. Discuss with MA 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 MA 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 MA counsel
48. Discuss with MA 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 MA counsel to take a more prominent role.
49. Discuss with MA counsel how visibility or
presence on a telephone call or meeting could
affect the dynamics of the discussions.
Goals and objectives
50. Discuss the goals and objectives
of the transaction early.
51. Clarify with MA counsel why the
company is pursuing this transaction.
52. Clarify with MA counsel how the
proposed transaction syncs with the
company’s business strategy.
53. Clarify with MA 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 MA counsel the extent to which
timing of the transaction affects, if at all, the
goals and objectives of the transaction.
ACC Docket
56. Discuss with MA counsel the risks
(legal and business) to the company
of pursuing the transaction.
57. Discuss with MA 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 MA counsel various strategies for
mitigating the anticipated risks to the transaction.
59. Discuss with MA counsel whether any
insurance should be considered to mitigate
any legal risks of the transaction (e.g.,
representation and warranty insurance).
60. Discuss with MA 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 MA 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.
Hurdles
62. Discuss with MA counsel the hurdles that the
transaction may need to surmount, including, but
not limited to, regulatory approvals, stockholder
approvals, third-party consents, SEC, etc.
Showstoppers
63. Discuss with MA counsel the potential
“showstoppers” that could cause
the transaction not to occur.
64. Discuss with MA counsel strategies to
mitigate and avoid any “showstoppers.”
Industry overview
65. Provide MA counsel (and any other external
advisors) with an update on the company’s industry
and recent developments with respect thereto.
60 May 2011

9. Company overview
66. Provide MA counsel (and any other external
advisors) with an update on the company, its
products and services, go-to-market strategy, MA,
corporate development, and other growth plans
and recent developments with respect thereto.
(e.g., reluctance of some private equity firms
to commit to two-step tender offers and their
preference for one-step merger transactions).
Approvals
71. Discuss with MA counsel what internal
and external approval processes the
transaction may be subject to.
72. Discuss with MA counsel what internal approvals
are required before proceeding (CEO, CFO, board,
significant or controlling stockholders, etc.).
73. Discuss with MA counsel possible steps
that could be taken in advance to make
these approvals easier to obtain.
74. Discuss with MA counsel whether the transaction
will be subject to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (HSR).
75. Discuss with MA 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 MA counsel the timing and
mechanics for stockholder approvals (e.g.,
preparation and filing of a proxy statement).
Transaction structures
67. Clarify with MA 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 MA counsel the tax
consequences of the various transaction
structures under consideration.
69. Discuss with MA counsel how the various
transaction structures under consideration
affect the timing of the transaction.
70. Discuss with MA counsel how the various
transaction structures under consideration would
affect the ability of the company to attract a buyer
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ACC Docket
61 May 2011

10. ACC Extras on… Issues to Clarify with Your MA Counsel
ACC Docket
Article
• 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
• 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
Quick References
• Top Things to Know About MA 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/ma-intel_apr10
• Top Ten Indemnification Concerns in MA 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-ma_mar09
77. Discuss with MA counsel whether any
regulatory approvals or notifications will need
to be obtained or made in connection with
the transaction, and the timing thereof.
78. Discuss with MA counsel whether any
third-party consents or notices will need
to be obtained or given in connection with
the transaction, and the timing thereof.
Board and governance issues
79. Discuss with MA 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 MA counsel the current schedule for
board and/or committee meetings and determine
the need for any special meetings to be scheduled.
81. Discuss with MA 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.
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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.
82. Discuss with MA counsel any lead times
applicable to providing board and/or
committee members with briefing materials
in connection with an MA transaction.
83. Discuss with MA 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 agreements
84. Discuss with MA counsel what definitive
agreements would be customary for the
transaction structure being contemplated.
85. Discuss with MA counsel whether in-house or
outside counsel will have primary responsibility
for the initial drafts of the definitive agreements.
86. Discuss with MA counsel the timing for the
preparation of the initial drafts of the definitive
agreements.
87. Discuss with MA counsel what process should
be followed for having the initial drafts of the
definitive agreements reviewed and discussed
62 May 2011

11. 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 schedules
88. Discuss with MA counsel whether inhouse or outside counsel will have primary
responsibility for preparing the initial
draft of the disclosure schedules.
Deal protection issues
89. Understand from MA counsel what deal
protection devices are available to the
company to protect the transaction.
90. Discuss with MA counsel what the
current legal landscape is with respect to the
enforceability of deal protection devices.
91. Review with MA counsel the strategic
players that might be expected to attempt to
interfere with any significant MA transaction
that might be pursued by the company.
Transaction negotiations
92. Discuss with MA counsel who will have the lead
in negotiating the terms of the definitive agreements.
93. Discuss with MA counsel what the
negotiating approach and strategy will be.
94. Discuss with MA counsel which issues
in the definitive agreement are particularly
sensitive to the company and which are not.
95. Ensure MA counsel have clarity on the
issues that the company does not want
to allow the deal to get hung up on.
Disclosure issues
96. Clarify with MA counsel when the company
would be required to publicly disclose that
it is pursuing an MA transaction.
97. Clarify with MA counsel whether the company
or outside counsel would be responsible
for preparing press releases and other
communications related to an MA transaction.
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SEC filings
98. Discuss with MA 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 MA 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 MA 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” MA
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 MA often does. Given the huge
amount of legal, logistical and other work involved in
driving an MA transaction to successful completion,
it requires an intense amount of partnering between inhouse counsel and other internal colleagues, with outside
MA 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 MA counsel. Following this roadmap leads
to a clear understanding of, among other things, roles and
responsibilities, expectations and goals, and objectives.∑
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64 May 2011