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march 15, 2005
This presentation outlines key issues investment bankers
have identifed as generating frequent client requests for
banker input in negotiating M&A deals.
A. Issues Arising Prior to Defnitive Agreements.
Is it better to use a letter of intent or an unsigned deal
summary or to move directly to negotiate defnitive
agreements?
When parties frst engage in merger talks, there is invariably
an NDA exchanged, sometimes including a restriction
against further shopping the target (“no shop”) (which
typically contains a “fduciary out” clause permitting the
target to engage in discussions with unsolicited superior
offers).
The question then becomes whether the parties should
n prepare a signed letter of intent (LOI) or
n an unsigned summary of key deal terms or
n move directly to defnitive agreements.

Public-private deals typically have a formal non-binding term
sheet (including a binding no shop) that is signed prior to
preparation of defnitive documents. This gives the acquiror
a limited period of time to conduct diligence (and thus the
ability to walk away if not satisfed) while reducing the risk
of a third party bidder. This also gives both parties suffcient
certainty as to economics and key deal terms to be able to
conclude they will reach agreement on defnitive documents
and thus that the expense of moving forward (and the risk to
the target of taking itself off the market) is justifed. A term
sheet that is reasonably detailed on key economic points
(exchange ratio, price adjustment and collar provisions,
indemnity provisions) and walk-away rights (MAE out, no
shop fduciary out, key closing conditions and termination
provisions) will also make it more likely that these tough
issues will not derail the deal at the defnitive agreement
stage.
In public-public deals, normally the scope of representations
and the need for due diligence are less critical, indemnity
provisions are rare, and the main issues are economics, deal
certainty and break up fees, so there is less beneft from
a term sheet and it is more typical to move directly to the
defnitive agreement. The need to sign before a press leak
and before any movement of the parties’ relative trading
prices that derails the deal also drives the parties directly
to defnitive documents. Finally, the execution of a term
sheet, or even the preparation of a deal term summary or
defnitive agreement draft refecting complete agreement on
all key deal terms, can compel public disclosure of pending
negotiations. For this reason, executed term sheets are
rare in material deals involving public companies and the
parties normally proceed directly to defnitive agreements
(often preceded by an unsigned deal summary). However,
key economic terms are intentionally omitted from any
such summary and early drafts of the defnitive agreement
to reduce the risk of being forced to disclose the deal
negotiations.
Are buyer-friendly or target-friendly term sheets a
better starting point?
Whether the buyer elects to serve up a one-sided or a
“down-the-middle” term sheet or deal summary will often
depend on negotiating style, perceived deal leverage (which
often relates to the risk of other bidders) and the intensity of
the desire of the CEOs to “get the deal done.”
Examples of terms slanted in favor of the buyer:
n “Customary representations” (i.e., long for target, short
for buyer, limited knowledge/materiality/MAE qualifers)
n target indemnity provisions; no cap or basket
M&A Deals: Key Issues, Tips and Tactics
david w. healy

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n escrow to secure indemnity; possible remedy beyond
escrow amount/period
n survival of representations at least through escrow
period, possibly longer
n voting agreements from target affliates holding up to 35-
45% of target; more if private?
n one-way “lock up” option to buy 19.9% of target at deal
price if target supports other bid
n MAE walk away, with no or limited exceptions
n due diligence closing condition (maybe unfair--gives
buyer an option to buy)
n minimum target net worth closing condition
n no shop with no (or very limited) fduciary out
n mandated vote on deal, even if other bidder
n right to top other bidder
n one way break up fee (2% per se reasonable--4%
aggressive)
n “all necessary consents” closing condition
n termination right upon commencement of third party bid
n restrictive pre-closing covenants
n noncompetes from founders
n employment agreements from key employees
Examples of terms slanted in favor of target:
n Mutual Representations (that is, identical for target and
buyer)
> this naturally makes buyer moderate the scope of
representations
> favors the target—buyer advisors should never
concede unless merger of equals
n representations expire at closing
n contemplate use of knowledge, materiality and MAE
qualifers for the representations
n No indemnity, escrow or survival of representations
> or if so, then a 1 year survival and escrow period,
10% indemnity cap and escrow, 1%+ basket, and
cross-indemnity from buyer
n No “MAE out”, or extensive exceptions for predictable
risks (customer cancellations/employee attrition) and
industry-wide factors
n Very limited closing conditions: regulatory approvals and
absence of litigation
n Broad No Shop fduciary out exception and ability to
provided information, negotiated and terminate deal w/o
vote on frst deal upon receipt of a possibly superior offer
n Collar/Walk away right if price declines
n Interim funding arrangement
What are the tactical implications of including vs.
excluding key terms from a term sheet?
n Advantage of including:
> lowers risk that parties will fail to reach agreement
on definitive agreements
> forces executives to focus on key points up front
while you have their attention
n Disadvantage:
> if term sheet is too detailed, may force public
disclosure of negotiations
> may bog down deal momentum by stalling CEOs’
“handshake” on the deal
B. Defnitive Agreement Issues
Discuss how to defne and negotiate a “MAC out”.
How does the Tyson case impact these provisions?
What are some of the most effective arguments to use
in this regard?
Buyer will almost always have the right to walk from the
deal if the target has experienced a material adverse change
(MAC) or material adverse effect (MAE). A buyer unhappy
with the negotiated price will often hope to declare a MAC
before closing and seek to re-negotiate the price or even
terminate the deal, so the defnition is critical.
Issues are:
n if CEOs really want the deal, why have such a “MAC
out”?—(because it may be a breach of buyer board’s
fduciary duty to close an acquisition where the value
has evaporated)
n does target have a similar condition to its obligation to
close? (usually yes)
n must the MAC have occurred or only be reasonably likely
to occur—many subtle variations here
n as target advisor, always delete “prospects” from the list
of what aspects of target have suffered a MAC
n when is the MAC “material”?—target may be inclined
not to specify—the case law in this context is relatively
favorable for target—one case implying that for a
revenue shortfall to be material it must be on the order
of a 50% shortfall and the Tyson case suggesting that if
the buyer could reasonably anticipate the adverse effect
(in that case a restatement of target’s fnancials pre-
closing) it cannot claim that such event is a MAC thereby
effectively giving the buyer an option to buy the target;
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these cases suggest that buyer should not rely on a
“general” MAC closing condition as a way out of the deal
So, buyer advisors may try to have target stipulate that
certain factors are a MAC (or a breach of a stand alone
closing condition, or a basis for adjusting the exchange
ratio by a specifed amount)—such as specifed employee
or customer attrition levels or more than a X% shortfall
from projected revenue or net worth--arguing that the
agreed valuation, or the buyer’s basis for doing the deal, is
dependent on these factors
Conversely, the target advisors should try to anticipate the
MACs likely to occur to the target pre-closing, and exclude
those from the defnition (so buyer must close despite the
occurrence of such specifed exceptions); examples are
adverse changes caused by factors such as:
Standard MAC Out Exclusions
n movement in a party’s stock price (buyer will want this
too) [collar may limit this]
n performance of the merger agreement (e.g., agreed
layoffs)
n failure of buyer to agree to requested actions or covenant
waivers
n events affecting target’s industry generally (but not
affecting target disproportionately)
n events caused by “general economic conditions” (but not
affecting target disproportionately)
Heavily Negotiated MAC Out Exclusions
n shortfall from analysts’ or disclosed projections (target
will argue this is fair if valuation already refects that
target will miss street estimates, or because customers
will understandably be concerned about integration of
the combined company’s products; buyer will argue this
negates the basis for the deal valuation and should be
deleted or “capped” at a de minimus shortfall)
n customer or employee attrition, at least below a certain
level or due to deal announcement
> buyer will argue that customers and employees are
the key value elements in the purchase; target will
argue that such attrition is entirely predictable;
compromise may be to:
— allow, but cap, the level of attrition deemed
included within the exception, and make clear
that the attrition was directly attributable
to announcement of the deal or to customer
concerns about the buyer’s announced product
integration plans, and
— add a separate closing condition that either
specified key employees accept employment
or that other steps be taken to limit employee
attrition risk.
Discuss customary vs. non-customary conditions.
What are some of the most effective arguments to use
in this regard?
The analysis here is similar to the MAE stipulation/exception
analysis set out above.
Buyer argues that the fnancial or strategic basis for the deal
and the valuation is that certain factors be true at closing,
and a key goal of the fnancial and legal diligence process
is to identify such factors. Conversely, target will argue that
it needs deal certainty to agree to a no shop and that it will
only agree to closing conditions that are both clear and
certain to occur. Both parties will argue that their respective
Board’s fduciary duties hinge on the closing conditions
being included, excluded or clarifed.
Customary Closing Conditions
n Representations true [in all material respects (typical
in private deals) vs. except to such an extent as would
result in an MAE (typical in public deals)]—argue for
the latter on basis of the target’s need for certainty of
closure and that buyer should not walk away where the
breach of representations do not rise to the MAE level
in the aggregate, and that such a carve out will lessen
arguments about exceptions in the representations;
argue for the former on the basis that target should not
be misrepresenting anything, and that acquiror would
not have agreed to the deal if representations were at
all false, and that the negotiated materiality, knowledge
and MAE qualifers in the representations give target all
the deal certainty it needs]
n Performance of all covenants [in all material respects?]
n Absence of MAE [refer to earlier discussion]
n All consents obtained [if material?; if failure to obtain
would have a MAE?; best efforts rather than absolute
covenant?] [target will argue this gives the party from
whom a consent (e.g., as to contract assignment) is
sought a veto on the deal and too much economic
leverage, and that this makes deal too uncertain]
n Absence of litigation/HSR issues [shareholder litigation
opposing transactions is predictable—target will want
buyer to proceed anyway, buyer will not want to “buy
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a lawsuit”, and will not want to close if DOJ or FTC
mandates disposition of assets]
n Absence of dissenters above a set percentage, say
2%-5% [buyer with stock argues it wants to limit cash
paid and that Delaware cases often rule that the per
share value in an dissenters’ appraisal proceeding is
higher than the negotiated deal value; target argues this
condition is not required by either accounting or tax rules
and effectively gives minority holders a veto on the deal]
n In a tender offer for a California corporation,
achievement of 90% tender (so can ensure that buyer
can cash out minority holders in a back-end short-form
merger)
n Obtaining required shareholder approvals
Non-Customary Closing Conditions
n The absence of excessive employee or customer attrition
levels or the meeting of projected (or agreed) target
interim revenue or net worth thresholds at closing (buyer
argues that the agreed valuation, or the buyer’s basis for
doing the deal, is dependent on these factors)
n Waiver by target offcers of option acceleration or
severance (target argues that this is pre-agreed and that
this gives offcers a “veto” on the deal, buyer argues
that acceleration adversely impacts retention and adds
unnecessarily to deal costs)
n Release by all employees of any equity or employment
related claims
n Elimination of certain risks or cost exposures identifed
in due diligence (such as settlement of a pending claim
or lawsuit) (buyer will argue that the deal is too risky or
that the contingency is too hard to value until eliminated
so it must be settled or resolved; target will argue this
gives the adverse party from whom a release is sought
a veto on the deal and too much leverage; compromise
may be to have no such closing condition but instead
include an adjustment to deal value based on estimated
range of risk or cost, or have an indemnity by target
shareholders for the identifed risk, perhaps subject to
an agreed basket and cap)
n Satisfactory completion of buyer’s diligence
investigation [not advisable for target; effectively gives
buyer an option to buy]
What is the range of most likely outcomes for a
“typical” public/private merger as to survival of
representations and warranties, indemnity and
escrow?
The elimination of the limits fxed by pooling rules gives
buyers more fexibility on indemnity, escrow and survival
provisions, but targets still push for the old pooling rule
limits (escrow (and generally the indemnity cap) not
exceeding 10% of deal value and generally no general
indemnities (or survival of representations) beyond the
frst anniversary of closing). Buyers will instead typically
demand survival for at least two years on most claims, but
three to six years on matters such as due authorization,
title, capitalization, tax, environmental, ERISA, intellectual
property/patent infringement, litigation and intentional
misrepresentation. Indemnity escrows rarely exceed 15%-
20% (and if they do, they frequently decline during the
escrow period), and they usually last 1 year (or 2 years
for specifed risks) (although in deals with an earnout,
the buyer will usually reserve the right to set off some or
all types of indemnity claims against earnout payments,
perhaps subject to a cap). Indemnity caps are often tied to
the escrow amount (say 20%), as specifed above, but will
often be higher for breaches of representations such as
due authorization, title, capitalization, tax, environmental,
ERISA, intellectual property/patent infringement, and
litigation matters. Baskets are far more typical than
deductibles and baskets range from ¼ of 1% to 1% of the
deal value. The target shareholders’ exposure on identifed
risk contingencies is often not subject to either the basket
or the cap (which is why such claims are often taken into
account as a price adjustment based on estimated exposure
instead). Other issues include exclusivity of indemnifcation
remedy, exclusivity of escrow as source of remedy, the
defnition of damages to include interest and consequential
damages, ability to credit tax deductions or insurance
proceeds received by buyer and control of litigation over
third party claims.
Representations and warranties: Which ones really
matter?
The most critical representations are generally those that
bear on:
1. the most material potential liabilities or other fnancial
exposures of the target; and
2 the key value elements of the target from the buyer’s
prospective.
The materiality and probability of potential liabilities
and other fnancial exposures will often depend on the
nature and size of the target and its business model. For
technology companies, the suffciency and protection
of the target’s intellectual property and the absence of
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infringement or claims of infringement will often be the
most critical representations and warranties. Clearly,
representations as to fnancial statements, absence of
contractual conficts, absence of changes from the balance
sheet date and litigation will be critical to identifying
potential liabilities. But others may also be helpful in
a particular context, such as disclosure as to material
customer complaints and order cancellations in the last
12 months, customer indemnity obligations and material
warranty claims. Also helpful can be representations as
to the ability to collect receivables, usability of inventory
and burdensome development obligations. The diligence
process will help identify these potential areas of concern
and representations should be tailored to induce full
disclosure as to such matters. There is often heated
negotiation about the existence and scope of a 10b-5
representation: that all of the other representations are
true and correct in all material respects and do not contain
material omissions; or that there is no fact, event or
condition (known to target) that would (or could) make the
representations untrue.
CEOs and investment bankers are perhaps best suited to
identifying the key elements of value in the target, and in
particular those facts or assumptions critical to justifying
the deal valuation. The most critical representations bear
on those key value elements. For technology companies,
disclosure as to intellectual property, progress against
development milestones, customer and employee attrition
risks, projections and suffciency of assets can often be the
most critical. Representations regarding cash position and
burn rate may be critical where buyer’s cash position is not
strong and the time to cash break even is critical to survival
of the combined company.
Discuss the typical arguments as to including or
excluding materiality, knowledge and MAE qualifers in
or from representations and warranties.
Buyers typically argue that no materiality, knowledge or MAE
qualifers are appropriate in the representations since the
buyer simply wants complete disclosure to manage the post-
closing business and legal risks and because:
(a) the buyer has agreed to a “basket” for indemnity claims,
so “No double dipping!”, and
(b) the closing condition that there are no breaches of
target representations already has a materiality or MAE
qualifer.
Targets will argue:
(a) if the target is public, that the size of the deal and the
availability of public information about the target (and
securities laws liabilities) make representations without
these qualifers unnecessary.
(b) that these qualifers are necessary to simplify
preparation of the disclosure schedule and to ensure
that the disclosure sought is truly material.
(c) that the target should not be asked to warrant something
it cannot know for certain, such as the absence of any
risk of patent infringement (counter: this is all about risk
allocation).
Discuss the importance of disclosure schedules and
provide tips on how to read them.
Buyers will want to ensure that the disclosure schedule
does not contain language that negates or modifes the
representation or shifts the risk of breach, or that is so
ambiguous as to lead to a dispute whether an exception was
actually disclosed. Careful review of the disclosure schedule
is the best form of due diligence and it can confrm the
results of buyer’s own diligence efforts.
Where a buyer requires a target to indemnify for breach of
representations, as is the case in most public-private deals,
the disclosure schedule is the most critical means for the
target shareholders to minimize indemnity liability, so target
bankers, counsel and management must scrutinize the
disclosure schedule to ensure that all material risks are fully
disclosed.
Where there is no indemnity provision, and the closing
condition on representations is subject to an overall MAE
exception, as is the case in most public-public deals, there is
less precision needed in the disclosure schedule.
Earn-outs: What are the key issues and pitfalls?
Tough issues include:
n lack of alignment of goals post deal
n employee morale issues if earn out not paid
n frequent source of disputes
n hard to anticipate all interpretation issues that will arise
later
n slows deal negotiations and drafting
n payment milestones can become outdated
> development milestone may become outmoded due
to:
— changing customer demands
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— need to integrate products
> revenue milestone may cease to be achievable due to
cost cuts
> milestones can be impacted by employee attrition
> milestones can be impacted by consolidation or sale
of buyer’s divisions
n diffcult to anticipate all ways in which buyer can “game”
the milestone, e.g.,
> revenue milestone:
— change in revenue recognition methodology
— buyer’s sales force not incentivized to cross-
sell
> earnings milestone—change in reserves or effective
tax rate
> development milestone—change in available
resources
When do enhanced scrutiny and Revlon apply?
In certain circumstances, including a change of control
(generally not a stock-for-stock merger of equals), an active
bidding process/auction, a sale of a subsidiary with minority
shareholders, a break-up of the company or the adoption of
defensive measures, courts will review directors’ decisions
to ensure that the decision making process was adequate
and that the action was reasonable. (While this seems like
a low standard, it allows the judges to look at the result
and not just the process.) In the “defensive” context,
“reasonableness” requires that (i) a potential superior
competing bid and meaningful stockholder vote not be
precluded (such as by excessive voting lock-ups or process
constraints) and that stockholders are no coerced (such as
by excessive break-up fees).
In such cases, the duty of the Board is to get “the best value
reasonably available to the stockholders.”
No single blueprint to get the best value: conduct pre-
signing auction or “market check” (limited shopping to most
likely bidders) and/or permit subsequent superior offers an
opportunity to prevail.
What are the Board’s duties in negotiating “no shop”
and “lock up” arrangements? What are the different
favors of no shop provisions? What are the legal limits
on deal protections?
n The board cannot contract away its fduciary duty.
n A “No Shop” clause cannot prevent the Board from
carrying out its duty in considering unsolicited bids or
negotiating the best value reasonably available.
> A properly drafted no shop provides a “road map” for
a third-party bidder to make a superior offer.
> Board must show that lock-up measures were
reasonable and necessary to get the deal (and
premium).
> The differences among (flavors of) no shops generally
relate to the following:
> What must be received from the third party bidder?
Must the offer be firm, fully financed, superior on its
face and in writing (and must a banker so advise?),
or merely be an inquiry that the target board in good
faith believes could result in a superior offer? Must
that offer be made up front or can it result from
the target providing information or engaging in
discussions after receipt of an unsolicited inquiry?
> What can the target do with the unsolicited inquiry
or offer? Provide information? Negotiate? Terminate
the agreement prior to a shareholder vote? Do any of
the above only where counsel advises that same is
“required” by or “consistent with” the target board’s
fiduciary duty?
> As a general rule, the more heavily shopped a deal
is pre-signing, and the higher the premium, and the
more clear it is that “Revlon” does not apply, the
more stringent the no shop can be and the more
limited the “fiduciary out” can be.
> At a minimum, the target board generally must
remain free to “consider” any unsolicited bid it
receives, to change its recommendation and to
communicate the terms of the alternative deal to its
shareholders.
What are the Board’s duties in evaluating break up
fees and what are the usual triggers?
n Break-up fees must be reasonable (2% per se reasonable
- 4% more aggressive).
> Break up fees usually triggered by:
— Primary acquiror’s decision to abandon deal in
response to voluntary actions by target board
adverse to the primary deal, such as changes
in recommendation to stockholders, endorsing
rival bid, etc.
— Target’s termination of primary deal in
response to a superior rival bid (often after
primary buyer fails to match superior offer)
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— Rejection of deal by stockholders (and
sometimes, for breach of representations,
time-out, or even regulatory terminations),
following a rival public bid (not a “naked” no
vote) and entry into (and sometimes closing of)
a rival bid (theory is primary bid “teed-up” the
better offer and that successful acquiror, rather
than target stockholders, will bear the cost).
> Break-up fees are usually not liquidated damages for
a breach of the merger agreement—they are part of
the legitimate road map to leave the first deal.
Voting/tender agreements: Can a deal be “locked up”
(with no fduciary out) by obtaining voting agreements
for a majority of the outstanding shares?
n Omnicare holding: “No, absent a fduciary out.” In
Omnicare, Inc. v. NCS Healthcare, Inc., Nos. 605, 2002
and 649, 2002, Holland, J. (Del. April 4, 2003), the
Supreme Court of Delaware held that when a deal is
fully locked up (i.e., it is “mathematically impossible”
or “realistically unattainable” for another bidder to
succeed), making closing a fait accompli, through
a combination of deal protection devices, in that
case consisting of (1) specifcally enforceable voting
agreements committing stockholders with a majority
of the voting power to vote for the deal, (2) a “force
the vote” provision, and (3) the absence of an effective
“fduciary out”, so as to prevent the board from being
able to effectively exercise its fduciary duties, then
such deal protection devices are unenforceable. The
Court warned target boards that entering into a fully
locked deal without an effective “fduciary out” may be
an abdication of the board’s responsibility to retain the
ability to exercise its fduciary duties in that context.
Nevertheless, in the closely held, private target context
(i) parties sometimes agree to use a target majority
stockholder written consent to approve and “lock” an
acquisition immediately after execution of the merger
agreement; and (ii) buyers may argue that Omnicare is
limited to its facts.
n Orman v. Cullman, 794 A.2d 5 (Del. Ch. 2002),
distinguished Omnicare and upheld a voting agreement
that prohibited the controlling shareholders from voting
in favor of a rival bid for 18 months, where minority
holders were given a veto right on the current deal, so
they could force the company to remain independent.

Are there any other creative ways to protect
transactions from interlopers?
Deals are normally protected with the features discussed
above:
n no shop
n voting agreements
n lock up option for 19.9% of target at deal price if it
accepts a competing bid
n break up fees
n right to top third party bid
There is some variability in the terms of these features, but
collectively they remain subject to the overall limitations
discussed earlier, including that in general they cannot,
considered as a whole, be preclusive or coerce shareholders
into voting for the frst deal.
Other possible arrangements may include the following,
subject to the limitation noted above:
n Refusal Rights — A right of refusal or right of frst offer
will often deter potential buyers; it is rarely given easily.
n Crown Jewel Option — structuring a crown jewel option
to give the frst buyer access to assets or rights that a
known competing bidder will fnd objectionable.
n Nominally Non-Preclusive Voting Agreements — obtaining
voting agreements covering a non-preclusive number
of shares, from parties collectively owning a preclusive
number of shares.
n Oenerous Business Arrangements — irrevocable
business arrangements that are reasonable but that
a potential bidder would fnd objectionable, such as
foreign distribution rights, discounted volume purchase
agreements, joint development arrangements, or
technology licenses and the like, but such arrangements
may be inconsistent with the target board’s fduciary
duties.
n Investments — a strategic investment in the form of
warrants, convertible debt or preferred stock with
signifcant liquidation preferences will at least give
the holder a place at the negotiating table, since the
buyer will often not want such securities to remain
outstanding, and may insist that the holder waive certain
liquidation preferences in a thin deal to give employees
holding common stock suffcient incentive to remain with
the combined company.
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n 10% Interest: Since pooling rules have now been
terminated, mere holding of a 10% interest in a company
(and thus ability to dissent and preclude pooling) is no
longer an absolute obstacle to a deal. However, since a
back end merger following a tender offer for a California
corporation cannot be done as a short form merger
without achieving a 90% tender, a 10% interest in such
entity may be a deterrent.
What is the HSR fling threshold? What are the different
levels of “effort” that buyer/seller must put forth to
achieve antitrust and other regulatory clearance?
I. Domestic Antitrust Filings (HSR)
HSR Filing is required where:
(a) The acquiring person will hold more than $59.8 million
worth of voting securities and assets of the acquired
person and the parties meet the “size-of-person”
requirements below; or
(b) Regardless of the parties’ sizes, the acquiring person will
hold more than $239.2 million worth of voting securities
and assets of the acquired person.
Meeting any one of the following three subtests satisfies the
“size-of-person” test:
(1) A person with $119.6 million or more of total assets (on
its most recent regularly-prepared balance sheet) or
annual net sales (from its most recently completed fiscal
year) proposes to acquire voting securities or assets of
a person engaged in manufacturing (note that software
is not considered manufacturing) with $12.0 million or
more of annual net sales or total assets;
(2) A person with $119.6 million or more of total assets or
annual net sales proposes to acquire voting securities
or assets of a person not engaged in manufacturing with
$12.0 million or more of total assets (net sales test does
not apply); or
(3) A person with $12.0 million or more of total assets or
annual net sales proposes to acquire voting securities or
assets of a person with $119.6 million or more of annual
net sales or total assets.
Note that “person” means ultimate parent. Note also if the
transaction involves the formation of a joint venture or LLC,
or involves the acquisition of stock or assets of a foreign
company, then certain additional tests must be met to
require notification.
II. Different Levels of Effort Required to Achieve HSR
Clearance
n None-buyer can terminate where
> HSR “second request” or foreign equivalent
> Government seeks injunction or institutes litigation
> Government requires any divestiture or limitation on
business conduct
n Some-buyer can only terminate if
> regulatory delay exceeds 3-6 months,
> Requested divestiture or limitation on business
conduct is “material”
n Extensive-buyer can only terminate if
> regulatory delay exceeds 9 months
> fight injunction and file an appeal
n Requested divestiture or limitation on business conduct
will have MAE
> buyer must agree to non-MAE divestitures; and
> buyer may not agree to acquire any third parties until
HSR clearance
n Drop Dead Date-extend 3-6 months automatically if HSR
2nd request?
© 2005-2007 Fenwick & West LLP. All Rights Reserved.

10% indemnity cap and escrow. and cross-indemnity from buyer n n n does target have a similar condition to its obligation to close? (usually yes) must the MAC have occurred or only be reasonably likely to occur—many subtle variations here as target advisor. or extensive exceptions for predictable risks (customer cancellations/employee attrition) and industry-wide factors n n n Very limited closing conditions: regulatory approvals and absence of litigation Broad No Shop fiduciary out exception and ability to provided information. possibly longer What are the tactical implications of including vs. escrow or survival of representations > or if so. then a 1 year survival and escrow period. 1%+ basket.n escrow to secure indemnity. why have such a “MAC out”?—(because it may be a breach of buyer board’s fiduciary duty to close an acquisition where the value has evaporated) n n representations expire at closing contemplate use of knowledge. materiality and MAE qualifiers for the representations No indemnity. Issues are: n n n n n n Examples of terms slanted in favor of target: n Mutual Representations (that is. excluding key terms from a term sheet? n n Advantage of including: > > lowers risk that parties will fail to reach agreement on definitive agreements forces executives to focus on key points up front while you have their attention n voting agreements from target affiliates holding up to 3545% of target. Definitive Agreement Issues Discuss how to define and negotiate a “MAC out”. with no or limited exceptions due diligence closing condition (maybe unfair--gives buyer an option to buy) minimum target net worth closing condition no shop with no (or very limited) fiduciary out mandated vote on deal. A buyer unhappy with the negotiated price will often hope to declare a MAC before closing and seek to re-negotiate the price or even terminate the deal.9% of target at deal price if target supports other bid MAE walk away. so the definition is critical. always delete “prospects” from the list of what aspects of target have suffered a MAC when is the MAC “material”?—target may be inclined not to specify—the case law in this context is relatively favorable for target—one case implying that for a revenue shortfall to be material it must be on the order of a 50% shortfall and the Tyson case suggesting that if the buyer could reasonably anticipate the adverse effect (in that case a restatement of target’s financials preclosing) it cannot claim that such event is a MAC thereby effectively giving the buyer an option to buy the target. more if private? one-way “lock up” option to buy 19. How does the Tyson case impact these provisions? What are some of the most effective arguments to use in this regard? Buyer will almost always have the right to walk from the deal if the target has experienced a material adverse change (MAC) or material adverse effect (MAE). identical for target and buyer) > > this naturally makes buyer moderate the scope of representations favors the target—buyer advisors should never concede unless merger of equals if CEOs really want the deal. tips and tactics fenwick & west . may force public disclosure of negotiations may bog down deal momentum by stalling CEOs’ “handshake” on the deal n n n n n B. even if other bidder right to top other bidder one way break up fee (2% per se reasonable--4% aggressive) “all necessary consents” closing condition termination right upon commencement of third party bid restrictive pre-closing covenants noncompetes from founders employment agreements from key employees n n n n Disadvantage: > > if term sheet is too detailed. possible remedy beyond escrow amount/period survival of representations at least through escrow period. negotiated and terminate deal w/o vote on first deal upon receipt of a possibly superior offer n n n Collar/Walk away right if price declines Interim funding arrangement  m&a deals: key issues. n No “MAE out”.

and a key goal of the financial and legal diligence process is to identify such factors. and that this makes deal too uncertain] n Absence of litigation/HSR issues [shareholder litigation opposing transactions is predictable—target will want buyer to proceed anyway.. buyer advisors may try to have target stipulate that certain factors are a MAC (or a breach of a stand alone closing condition. except to such an extent as would result in an MAE (typical in public deals)]—argue for the latter on basis of the target’s need for certainty of closure and that buyer should not walk away where the breach of representations do not rise to the MAE level in the aggregate. compromise may be to: — allow. the level of attrition deemed included within the exception. knowledge and MAE qualifiers in the representations give target all the deal certainty it needs] n Heavily Negotiated MAC Out Exclusions n shortfall from analysts’ or disclosed projections (target will argue this is fair if valuation already reflects that target will miss street estimates. or because customers will understandably be concerned about integration of the combined company’s products. buyer will argue this negates the basis for the deal valuation and should be deleted or “capped” at a de minimus shortfall) n customer or employee attrition. What are some of the most effective arguments to use in this regard? The analysis here is similar to the MAE stipulation/exception analysis set out above. and — add a separate closing condition that either specified key employees accept employment or that other steps be taken to limit employee attrition risk. examples are adverse changes caused by factors such as: Standard MAC Out Exclusions n concerns about the buyer’s announced product integration plans.g. agreed layoffs) failure of buyer to agree to requested actions or covenant waivers events affecting target’s industry generally (but not affecting target disproportionately) events caused by “general economic conditions” (but not affecting target disproportionately) n n n Representations true [in all material respects (typical in private deals) vs. non-customary conditions. Customary Closing Conditions n movement in a party’s stock price (buyer will want this too) [collar may limit this] performance of the merger agreement (e. as to contract assignment) is sought a veto on the deal and too much economic leverage. excluded or clarified. or a basis for adjusting the exchange ratio by a specified amount)—such as specified employee or customer attrition levels or more than a X% shortfall from projected revenue or net worth--arguing that the agreed valuation. if failure to obtain would have a MAE?. Buyer argues that the financial or strategic basis for the deal and the valuation is that certain factors be true at closing.these cases suggest that buyer should not rely on a “general” MAC closing condition as a way out of the deal So. and that such a carve out will lessen arguments about exceptions in the representations.g. is dependent on these factors Conversely.. target will argue that it needs deal certainty to agree to a no shop and that it will only agree to closing conditions that are both clear and certain to occur. target will argue that such attrition is entirely predictable. Discuss customary vs. at least below a certain level or due to deal announcement > buyer will argue that customers and employees are the key value elements in the purchase. buyer will not want to “buy fenwick & west m&a deals: key issues. tips and tactics  . or the buyer’s basis for doing the deal. and exclude those from the definition (so buyer must close despite the occurrence of such specified exceptions). and make clear that the attrition was directly attributable to announcement of the deal or to customer n n n Performance of all covenants [in all material respects?] Absence of MAE [refer to earlier discussion] All consents obtained [if material?. Both parties will argue that their respective Board’s fiduciary duties hinge on the closing conditions being included. but cap. the target advisors should try to anticipate the MACs likely to occur to the target pre-closing. and that acquiror would not have agreed to the deal if representations were at all false. argue for the former on the basis that target should not be misrepresenting anything. Conversely. best efforts rather than absolute covenant?] [target will argue this gives the party from whom a consent (e. and that the negotiated materiality.

ability to credit tax deductions or insurance proceeds received by buyer and control of litigation over third party claims. or the buyer’s basis for doing the deal. environmental. but three to six years on matters such as due authorization. Indemnity caps are often tied to the escrow amount (say 20%). For technology companies. escrow and survival provisions. but targets still push for the old pooling rule limits (escrow (and generally the indemnity cap) not exceeding 10% of deal value and generally no general indemnities (or survival of representations) beyond the first anniversary of closing). but will often be higher for breaches of representations such as due authorization. intellectual property/patent infringement. title. they frequently decline during the escrow period). environmental. say 2%-5% [buyer with stock argues it wants to limit cash paid and that Delaware cases often rule that the per share value in an dissenters’ appraisal proceeding is higher than the negotiated deal value.a lawsuit”. the buyer will usually reserve the right to set off some or all types of indemnity claims against earnout payments. target argues this condition is not required by either accounting or tax rules and effectively gives minority holders a veto on the deal] n In a tender offer for a California corporation. the definition of damages to include interest and consequential damages. the most material potential liabilities or other financial exposures of the target. the sufficiency and protection of the target’s intellectual property and the absence of  m&a deals: key issues. and 2 the key value elements of the target from the buyer’s prospective. litigation and intentional misrepresentation. intellectual property/patent infringement. Buyers will instead typically demand survival for at least two years on most claims. perhaps subject to a cap). achievement of 90% tender (so can ensure that buyer can cash out minority holders in a back-end short-form merger) n Obtaining required shareholder approvals Non-Customary Closing Conditions n The absence of excessive employee or customer attrition levels or the meeting of projected (or agreed) target interim revenue or net worth thresholds at closing (buyer argues that the agreed valuation. Absence of dissenters above a set percentage. title. capitalization. target will argue this gives the adverse party from whom a release is sought a veto on the deal and too much leverage. capitalization. and litigation matters. and they usually last 1 year (or 2 years for specified risks) (although in deals with an earnout. as specified above. Indemnity escrows rarely exceed 15%20% (and if they do. tax. exclusivity of escrow as source of remedy. tax. ERISA. tips and tactics fenwick & west . Baskets are far more typical than deductibles and baskets range from ¼ of 1% to 1% of the deal value. n Satisfactory completion of buyer’s diligence investigation [not advisable for target. is dependent on these factors) n Waiver by target officers of option acceleration or severance (target argues that this is pre-agreed and that this gives officers a “veto” on the deal. Other issues include exclusivity of indemnification remedy. and will not want to close if DOJ or FTC mandates disposition of assets] n The elimination of the limits fixed by pooling rules gives buyers more flexibility on indemnity. effectively gives buyer an option to buy] What is the range of most likely outcomes for a “typical” public/private merger as to survival of representations and warranties. ERISA. or have an indemnity by target shareholders for the identified risk. buyer argues that acceleration adversely impacts retention and adds unnecessarily to deal costs) n Release by all employees of any equity or employment related claims Elimination of certain risks or cost exposures identified in due diligence (such as settlement of a pending claim or lawsuit) (buyer will argue that the deal is too risky or that the contingency is too hard to value until eliminated so it must be settled or resolved. compromise may be to have no such closing condition but instead include an adjustment to deal value based on estimated range of risk or cost. indemnity and escrow? The materiality and probability of potential liabilities and other financial exposures will often depend on the nature and size of the target and its business model. The target shareholders’ exposure on identified risk contingencies is often not subject to either the basket or the cap (which is why such claims are often taken into account as a price adjustment based on estimated exposure instead). perhaps subject to an agreed basket and cap) n Representations and warranties: Which ones really matter? The most critical representations are generally those that bear on: 1.

Also helpful can be representations as to the ability to collect receivables. tips and tactics  n n . disclosure as to intellectual property. such as the absence of any risk of patent infringement (counter: this is all about risk allocation). For technology companies. The diligence process will help identify these potential areas of concern and representations should be tailored to induce full disclosure as to such matters. projections and sufficiency of assets can often be the most critical. as is the case in most public-private deals. there is less precision needed in the disclosure schedule. absence of changes from the balance sheet date and litigation will be critical to identifying potential liabilities. Where there is no indemnity provision. customer and employee attrition risks. Discuss the importance of disclosure schedules and provide tips on how to read them. Buyers will want to ensure that the disclosure schedule does not contain language that negates or modifies the representation or shifts the risk of breach. knowledge and MAE qualifiers in or from representations and warranties. The most critical representations bear on those key value elements. Where a buyer requires a target to indemnify for breach of representations. that the size of the deal and the availability of public information about the target (and securities laws liabilities) make representations without these qualifiers unnecessary. so target bankers. customer indemnity obligations and material warranty claims. (a) if the target is public. Discuss the typical arguments as to including or excluding materiality. event or condition (known to target) that would (or could) make the representations untrue. so “No double dipping!”. knowledge or MAE qualifiers are appropriate in the representations since the buyer simply wants complete disclosure to manage the postclosing business and legal risks and because: (a) the buyer has agreed to a “basket” for indemnity claims. and in particular those facts or assumptions critical to justifying the deal valuation. counsel and management must scrutinize the disclosure schedule to ensure that all material risks are fully disclosed. such as disclosure as to material customer complaints and order cancellations in the last 12 months. and (b) the closing condition that there are no breaches of target representations already has a materiality or MAE qualifier. or that is so ambiguous as to lead to a dispute whether an exception was actually disclosed. Representations regarding cash position and burn rate may be critical where buyer’s cash position is not strong and the time to cash break even is critical to survival of the combined company. Buyers typically argue that no materiality. or that there is no fact.infringement or claims of infringement will often be the most critical representations and warranties. There is often heated negotiation about the existence and scope of a 10b-5 representation: that all of the other representations are true and correct in all material respects and do not contain material omissions. progress against development milestones. Clearly. CEOs and investment bankers are perhaps best suited to identifying the key elements of value in the target. absence of contractual conflicts. Targets will argue: fenwick & west Earn-outs: What are the key issues and pitfalls? Tough issues include: n n n n lack of alignment of goals post deal employee morale issues if earn out not paid frequent source of disputes hard to anticipate all interpretation issues that will arise later slows deal negotiations and drafting payment milestones can become outdated > development milestone may become outmoded due to: — changing customer demands m&a deals: key issues. usability of inventory and burdensome development obligations. But others may also be helpful in a particular context. and the closing condition on representations is subject to an overall MAE exception. Careful review of the disclosure schedule is the best form of due diligence and it can confirm the results of buyer’s own diligence efforts. as is the case in most public-public deals. (c) that the target should not be asked to warrant something it cannot know for certain. the disclosure schedule is the most critical means for the target shareholders to minimize indemnity liability. (b) that these qualifiers are necessary to simplify preparation of the disclosure schedule and to ensure that the disclosure sought is truly material. representations as to financial statements.

n What are the Board’s duties in evaluating break up fees and what are the usual triggers? Break-up fees must be reasonable (2% per se reasonable . a break-up of the company or the adoption of defensive measures. the more heavily shopped a deal is pre-signing. and the higher the premium. such as changes in recommendation to stockholders. fully financed.) In the “defensive” context. > > A properly drafted no shop provides a “road map” for a third-party bidder to make a superior offer.” No single blueprint to get the best value: conduct presigning auction or “market check” (limited shopping to most likely bidders) and/or permit subsequent superior offers an opportunity to prevail. etc. and the more clear it is that “Revlon” does not apply. revenue milestone may cease to be achievable due to cost cuts milestones can be impacted by employee attrition milestones can be impacted by consolidation or sale of buyer’s divisions difficult to anticipate all ways in which buyer can “game” the milestone. the more stringent the no shop can be and the more limited the “fiduciary out” can be.  m&a deals: key issues. courts will review directors’ decisions to ensure that the decision making process was adequate and that the action was reasonable. a sale of a subsidiary with minority shareholders. superior on its face and in writing (and must a banker so advise?).g. the target board generally must remain free to “consider” any unsolicited bid it receives. Board must show that lock-up measures were reasonable and necessary to get the deal (and premium). In such cases. (While this seems like a low standard. endorsing rival bid. — Target’s termination of primary deal in response to a superior rival bid (often after primary buyer fails to match superior offer) What are the Board’s duties in negotiating “no shop” and “lock up” arrangements? What are the different flavors of no shop provisions? What are the legal limits on deal protections? n The board cannot contract away its fiduciary duty. “reasonableness” requires that (i) a potential superior competing bid and meaningful stockholder vote not be precluded (such as by excessive voting lock-ups or process constraints) and that stockholders are no coerced (such as by excessive break-up fees). > Break up fees usually triggered by: — Primary acquiror’s decision to abandon deal in response to voluntary actions by target board adverse to the primary deal. tips and tactics fenwick & west . it allows the judges to look at the result and not just the process. an active bidding process/auction. e. > revenue milestone: — — > > change in revenue recognition methodology buyer’s sales force not incentivized to crosssell earnings milestone—change in reserves or effective tax rate development milestone—change in available resources When do enhanced scrutiny and Revlon apply? In certain circumstances. > > The differences among (flavors of) no shops generally relate to the following: What must be received from the third party bidder? Must the offer be firm. > At a minimum. including a change of control (generally not a stock-for-stock merger of equals).. the duty of the Board is to get “the best value reasonably available to the stockholders. to change its recommendation and to communicate the terms of the alternative deal to its shareholders.4% more aggressive).— > > > n need to integrate products n A “No Shop” clause cannot prevent the Board from carrying out its duty in considering unsolicited bids or negotiating the best value reasonably available. or merely be an inquiry that the target board in good faith believes could result in a superior offer? Must that offer be made up front or can it result from the target providing information or engaging in discussions after receipt of an unsolicited inquiry? > What can the target do with the unsolicited inquiry or offer? Provide information? Negotiate? Terminate the agreement prior to a shareholder vote? Do any of the above only where counsel advises that same is “required” by or “consistent with” the target board’s fiduciary duty? > As a general rule.

Are there any other creative ways to protect transactions from interlopers? Deals are normally protected with the features discussed above: n n n no shop voting agreements lock up option for 19. then such deal protection devices are unenforceable. from parties collectively owning a preclusive number of shares. Ch. but such arrangements may be inconsistent with the target board’s fiduciary duties. Crown Jewel Option — structuring a crown jewel option to give the first buyer access to assets or rights that a known competing bidder will find objectionable. n Orman v. so as to prevent the board from being able to effectively exercise its fiduciary duties. Holland. through a combination of deal protection devices. n n Voting/tender agreements: Can a deal be “locked up” (with no fiduciary out) by obtaining voting agreements for a majority of the outstanding shares? n There is some variability in the terms of these features. Inc. following a rival public bid (not a “naked” no vote) and entry into (and sometimes closing of) a rival bid (theory is primary bid “teed-up” the better offer and that successful acquiror. (2) a “force the vote” provision. 2002).. convertible debt or preferred stock with significant liquidation preferences will at least give the holder a place at the negotiating table. n Oenerous Business Arrangements — irrevocable business arrangements that are reasonable but that a potential bidder would find objectionable. in that case consisting of (1) specifically enforceable voting agreements committing stockholders with a majority of the voting power to vote for the deal. fenwick & west m&a deals: key issues. or even regulatory terminations). considered as a whole. and may insist that the holder waive certain liquidation preferences in a thin deal to give employees holding common stock sufficient incentive to remain with the combined company. Nevertheless. it is “mathematically impossible” or “realistically unattainable” for another bidder to succeed). NCS Healthcare.— Rejection of deal by stockholders (and sometimes. such as foreign distribution rights. Inc. making closing a fait accompli. Nos. and (ii) buyers may argue that Omnicare is limited to its facts. it is rarely given easily. n Investments — a strategic investment in the form of warrants. Other possible arrangements may include the following. 794 A. v. 605. the Supreme Court of Delaware held that when a deal is fully locked up (i. private target context (i) parties sometimes agree to use a target majority stockholder written consent to approve and “lock” an acquisition immediately after execution of the merger agreement.. and (3) the absence of an effective “fiduciary out”. tips and tactics  . rather than target stockholders.e. including that in general they cannot. time-out. J.” In Omnicare. in the closely held. so they could force the company to remain independent. distinguished Omnicare and upheld a voting agreement that prohibited the controlling shareholders from voting in favor of a rival bid for 18 months. The Court warned target boards that entering into a fully locked deal without an effective “fiduciary out” may be an abdication of the board’s responsibility to retain the ability to exercise its fiduciary duties in that context. subject to the limitation noted above: n Omnicare holding: “No. discounted volume purchase agreements. absent a fiduciary out. April 4. Refusal Rights — A right of refusal or right of first offer will often deter potential buyers.9% of target at deal price if it accepts a competing bid break up fees right to top third party bid > Break-up fees are usually not liquidated damages for a breach of the merger agreement—they are part of the legitimate road map to leave the first deal. joint development arrangements. since the buyer will often not want such securities to remain outstanding. or technology licenses and the like. will bear the cost). where minority holders were given a veto right on the current deal. 2002 and 649. but collectively they remain subject to the overall limitations discussed earlier. for breach of representations. n n Nominally Non-Preclusive Voting Agreements — obtaining voting agreements covering a non-preclusive number of shares. Cullman. 2003). 2002. (Del.2d 5 (Del. be preclusive or coerce shareholders into voting for the first deal.

a 10% interest in such entity may be a deterrent. or involves the acquisition of stock or assets of a foreign company. or (3) A person with $12. Requested divestiture or limitation on business conduct is “material” Extensive-buyer can only terminate if > > regulatory delay exceeds 9 months fight injunction and file an appeal Requested divestiture or limitation on business conduct will have MAE > > buyer must agree to non-MAE divestitures. Different Levels of Effort Required to Achieve HSR Clearance n None-buyer can terminate where > > > HSR “second request” or foreign equivalent Government seeks injunction or institutes litigation Government requires any divestiture or limitation on business conduct What is the HSR filing threshold? What are the different levels of “effort” that buyer/seller must put forth to achieve antitrust and other regulatory clearance? I.2 million worth of voting securities and assets of the acquired person. mere holding of a 10% interest in a company (and thus ability to dissent and preclude pooling) is no longer an absolute obstacle to a deal.8 million worth of voting securities and assets of the acquired person and the parties meet the “size-of-person” requirements below. and buyer may not agree to acquire any third parties until HSR clearance (b) Regardless of the parties’ sizes. tips and tactics fenwick & west .0 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person with $119. Note also if the transaction involves the formation of a joint venture or LLC. (2) A person with $119.0 million or more of total assets (net sales test does not apply). n Drop Dead Date-extend 3-6 months automatically if HSR 2nd request? © 2005-2007 Fenwick & West LLP. All Rights Reserved. or n n n Some-buyer can only terminate if > > regulatory delay exceeds 3-6 months. However.0 million or more of annual net sales or total assets. the acquiring person will hold more than $239.6 million or more of total assets or annual net sales proposes to acquire voting securities or assets of a person not engaged in manufacturing with $12. since a back end merger following a tender offer for a California corporation cannot be done as a short form merger without achieving a 90% tender.  m&a deals: key issues.6 million or more of total assets (on its most recent regularly-prepared balance sheet) or annual net sales (from its most recently completed fiscal year) proposes to acquire voting securities or assets of a person engaged in manufacturing (note that software is not considered manufacturing) with $12.6 million or more of annual net sales or total assets. Meeting any one of the following three subtests satisfies the “size-of-person” test: (1) A person with $119. II.n 10% Interest: Since pooling rules have now been terminated. Note that “person” means ultimate parent. Domestic Antitrust Filings (HSR) HSR Filing is required where: (a) The acquiring person will hold more than $59. then certain additional tests must be met to require notification.