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1. What is the deal structure? How does this get initiated and approved? a. Deal type i.

Direct merger ii. Sale of assets/Acquisition iii. Forward or Reverse Triangular Merger iv. Stock sale v. Short form merger vi. LBO/MBO vii. De facto (not in Delaware) 1. YES – Applestein 2. No – Hariton (del), DMG(fla), BNY(ny) a. Also redemption is not a merger - Rauch viii. Bust-up ix. Merger of equals b. Voting powers, rights, and appraisal rights depend on deal type ASK: public or private? Type of consideration? THESE AFFECT VOTING RIGHTS! i. BOD Bidder (always votes/adopts resolution in merger) 1. in triangular – acting under 141 and not a party to merger ii. BOD Target (always takes action) iii. BOD sub (triangular – adoption resolutions though academic) iv. SH Bidder 1. do not vote if 251(f) applies v. SH Target 1. do not vote in acquisition if not all or sub all of assets 2. but if public company then Rule 312 could apply vi. SH sub 1. vote unless 251(f) applies c. Appraisal (FMV – really only remedy besides injunction) i. Procedural rights ii. ONLY FOR MERGERS iii. No rights if 2000 SH or listed on stock exchange (market out) 1. but if consideration other than ALL stock then back 2. exception to exception applies whether public or private 2. What assets or liabilities are transferred in the deal? a. Type of deal affects who has what … b. Real property (and leases) i. Presumption that alienable ii. If there is a clause  look at state law to see if it is a transfer, and then if desired action is implicated c. IP rights & licenses i. Presumption that not alienable ii. SO need to determine under state law if transfer – and then if yes – if the clause in the K prevents assignability (take precautionary actions here) d. Contract (intent of the parties) e. Tort (in assets – only if expressly/fraud/mere continuation/de facto) 3. Is the deal negotiated or hostile? a. Negotiations (start with letter of intent?) i. DUE DILIGENCE (V. IMPORTANT) ii. In agreement 1. Type of deal 2. Consideration for deal (earn-outs or escrow?) 3. Financing 4. Representations & Warranties

golden parachutes 3. 4(1) (other than underwriter. Moran – planned are good 2. Counsel – issue confidentiality agreements. Materiality is test for disclosure 2. Defensive Tactics (planned/proportional?) 1. SECONDARY SALES 1. Insider Trading . Auctioneer d. Rejects agreement in principle 3. require that directors speak to counsel before speaking. All transactions must be registered or exempt 1. and inform critical relationships of the deal ii. Types of Defensive Tactics 1. Any defensive tactics now need to increase value b. Williams Act (Tender Offers) e. Revlon a. poison pills 2. Independent board g. Can consider other interests but only as to how they increase SH value 4. Triggered when: i. Investment bankers e. we’re okay!) c. If speak – do not break the rule. provide same information to everyone. pac man 6. Liabilities i. CCA – when not in proportion. GET HIGHEST PRICE FOR SH a. Unocal 2. dealer or broker) 2. Indemnifications 7. defensive not appropriate iii. Rule 144 (restricted securities) 3. Proxy (minimum disclosure requirements) d. Hostile i. Any securities issues (are we dealing with a public company?) a. Enhanced scrutiny to get BJR protection 1. Scripts i. Plan to sell company ii. a. DO NOT NEED TO SELL if can meet Unocal b. Registration or exemptions i. D/ Rule 506 ii. lock up for crown jewels 4. Conditions precedent (MAC/walk-away rights) b.5. Rule 145 (if public. Firm best and last offer times h. Change of control transaction ii. Covenants 6. ban trading. SALE – Revlon 1. no-shop/no-talk/window-shop/general exclusivity iv. debt w/warrants 5. Long-term strategy shot to shit iii. Rule 10b-5 1. exemptions – 4(2)/Reg. Fairness opinions f. Equal access to data – virtual data room c. Rule 312 b.

illegality. Short swing profits – strict liability for D/O/10% SH 5. falls under section 14 – no fraudulent. safe harbor for conflicts – 144 (or get off BOD!) ii. 102(b)(7) and insurance b. Fiduciary duties a. conflict of interest or gross negligence. Must disclose or abstain from trading iii. Disclosure 1. disclose everything germane 2. 1.1. Conflict of interest (Weinberger if not cleansed – need to meet intrinsic fairness) ii. Loyalty i. deceptive or misleading acts in accordance with a tender offer. BJR protection unless fraud. if knowingly disclose false information and cause injury. Against insider and outsider trading/includes tipper-tippee. Additional protections: Del. Care i. a. liable to SH though don’t request SH action WHY/WHAT BASIS DO SH SUE?  Corporation failed to follow correct procedure  Corporation breached securities laws  Directors breached FD  Trying to get more money .