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| Preface | |
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| Getting Started in Mergers and Acquisitions | |
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| Introduction | |
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| Basic Terms | |
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| Concluding Comments | |
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| Notes | |
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| Planning and Finding | |
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| Introduction | |
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| Strategic Planning for Operating Companies | |
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| In-House Search | |
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| Brokers and Finders | |
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| Role of Investment and Commercial Banks in M&A | |
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| General Regulatory Considerations for Buyers | |
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| Antitrust Considerations for Acquisitions | |
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| Hart-Scott-Rodino | |
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| Concluding Comments | |
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| Sample Checklist of Assets for Use in Complement/Supplement Analysis | |
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| Sample Checklist of Risks for Use in Seeking Complementary Acquisitions | |
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| Premerger Notification and Waiting Period Under Hart-Scott-Rodino | |
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| Types of Organizational Structure | |
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| Checklist of Assets | |
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| Revision to the Horizontal Merger Guidelines Issued by the U.S. Department of Justice and the Federal Trade Commission | |
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| Notes | |
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| Valuation and Pricing | |
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| Introduction | |
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| Valuation Fundamentals | |
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| Pricing Issues | |
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| Special Considerations for Private Companies | |
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| Expressing the Purchase Price in the Acquisition Agreement | |
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| Concluding Comments | |
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| Estimating the Cost of Capital | |
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| Notes | |
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| The Art of Financing and Refinancing | |
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| Introduction | |
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| Financing Overview | |
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| Financing Instruments: Equity vs. Debt vs. Hybrids | |
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| Financing Sources | |
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| Highly Leveraged Transactions | |
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| Minimizing Borrowing | |
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| Determining Structure in Debt Financing | |
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| Senior Debt | |
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| Sale-Leasebacks | |
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| Pros and Cons of Preserving Debt and Lease Obligations | |
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| Seller Takeback Financing | |
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| Warrants | |
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| Working Capital Debt of the Seller | |
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| The Bank Book and Commitment Letter | |
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| Other Principal Issues in Senior Loan Agreements | |
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| Insurance Company Financing | |
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| High-Yield-(a.k.a. "Junk")-Bonds | |
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| Bridge Loans | |
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| Equity Investment Funds | |
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| Registration Rights | |
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| Intercreditor Issues | |
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| Subordination Issues | |
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| Intercreditor Agreements | |
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| Fraudulent Conveyance and Other Litigation Concerns | |
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| Refinancing Issues | |
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| Concluding Comments | |
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| Typical Subordination Provisions of Publicly Issued Notes | |
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| Typical Subordination Provisions of Privately Placed Institutional Notes | |
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| Typical Subordination Provisions of Seller Notes | |
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| Notes | |
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| Structuring Transactions: General, Tax, and Accounting Considerations | |
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| Introduction | |
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| General Considerations | |
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| Accounting Considerations | |
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| Goodwill Impairment Testing | |
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| Tax Considerations | |
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| Concluding Comments | |
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| Transaction Diagrams | |
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| Notes | |
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| The Due Diligence Inquiry | |
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| Introduction | |
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| Getting Started | |
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| Duration of Due Diligence | |
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| Due Diligence Levels | |
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| Relations with Seller | |
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| Location of Due Diligence Research | |
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| Evaluating Assets | |
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| Litigation Analysis | |
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| Emerging Legal Issues | |
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| Due Diligence After Closing | |
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| Concluding Comments | |
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| Sample Confidentiality Agreement | |
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| Due Diligence Checklist | |
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| An Annotated Initial Document and Information Request List | |
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| Index of Data Room Documents | |
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| Notes | |
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| Negotiating the Acquisition Agreement and the Letter of Intent | |
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| Introduction | |
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| The Letter of Intent | |
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| The Acquisition Agreement | |
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| Components of the Agreement | |
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| Introductory Material | |
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| Representations and Warranties | |
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| Covenants | |
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| Conditions to Closing | |
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| Indemnity Section | |
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| Acquisitions from an Affiliated Group | |
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| Transactions Involving Public Companies | |
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| Negotiating and Documenting an MBO | |
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| Employment Agreements | |
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| Stockholders' Agreements | |
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| Concluding Comments | |
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| Sample Letter of Intent | |
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| Typical Merger Agreement and Commentary | |
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| Notes | |
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| Closing | |
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| Introduction | |
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| The Basics of Closing | |
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| Pre-Closing | |
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| Closing | |
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| Wire Transfers | |
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| Post-Closing | |
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| Planning the Closing | |
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| Concluding Comments | |
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| Sample Closing Memorandum (Including a Detailed Schedule of Closing Documents) | |
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| Note | |
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| Postmerger Integration and Divestitures | |
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| Introduction | |
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| Basic Concepts of Integration | |
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| The Postmerger Plan | |
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| Communicating the Integration Plan | |
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| Combining Company Names | |
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| Integrating Cultures | |
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| Integrating Vision, Policy, Ethics, and Mission Statements | |
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| Integrating Key Resources, Processes, and Responsibilities | |
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| Integrating Resources | |
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| Integrating Processes | |
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| Integration of Key Responsibilities | |
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| Legal Aspects of Shareholder Relations | |
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| Commitments to Employees | |
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| Postmerger Compensation: A Complex Issue | |
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| Planning Pay Integration: A Strategic Overview | |
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| Merging Benefit Plans | |
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| Divestitures | |
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| Concluding Comments | |
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| Sample Postmerger Press Release Highlighting Strategic Motivation | |
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| Sample Assets Checklist of Resources, Processes, and Responsibilities | |
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| Integration Planning Worksheet | |
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| Integration Timeline from a Midsized Acquirer | |
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| Pairwise Comparison | |
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| Notes | |
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| Special Issues for M&A in Public Companies | |
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| Introduction | |
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| General Considerations | |
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| Sarbanes-Oxley and M&A | |
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| Duties of Care, Loyalty, and Good Faith in M&A | |
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| Director Responsibilities in Responding to Unsolicited Bids | |
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| M&A Forms | |
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| Tender Offer Basics | |
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| Proxy Solicitations | |
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| Merger Disclosure Issues | |
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| Insider Trading | |
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| Financing the Public Transaction | |
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| Takeover Defenses | |
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| Related State Laws | |
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| Concluding Comments | |
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| Notes | |
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| Workouts, Bankruptcies, and Liquidations | |
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| Introduction | |
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| General Considerations | |
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| Workouts | |
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| Bankruptcy | |
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| State Insolvency Proceedings | |
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| Investing Opportunities: Structuring the Purchase of a Troubled Company | |
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| Structuring a Leveraged Buyout to Minimize Insolvency Risk | |
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| Financing Alternatives for Companies with Losses | |
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| Accounting/Tax Issues for Companies with Losses | |
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| Liquidation | |
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| Concluding Comments | |
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| Diagrams Showing Various Structures for Reorganizations and Workouts of Insolvent Companies | |
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| The "Samex" Case: Illustrating the Vulnerability of the Bankruptcy Process to Fraud, and the Relative Finality of Acquisition Decisions Made in Bankruptcy Court | |
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| Notes | |
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| Structuring Transactions with International Aspects | |
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| Introduction | |
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| Nontax Issues Regarding Foreign Investment in the United States | |
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| Acquisitions of Entities Involving Assets Located Outside the United States | |
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| Foreign Exchange | |
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| Financing | |
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| International Tax and Disclosure Considerations | |
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| Tax Considerations in Inbound Acquisitions | |
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| FIRPTA | |
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| Tax Considerations in Outbound Acquisitions | |
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| Concluding Comments | |
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| Notes | |
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| A WOFC Case Study: J. T. Smith Consultants | |
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| Landmark and Recent M&A Legal Cases | |
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| Cases Alleging Impropriety in a Merger or in the Acquisition of a Business or Controlling Shares | |
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| Cases Alleging Impropriety in the Valuation and/or Sale of a Business, Assets, or Controlling Shares | |
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| Cases Involving M&A Agreements or Other Contracts | |
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| Cases Alleging Violation of Antitrust Laws | |
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| Cases Alleging Violations of Health, Safely, and Labor Laws | |
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| Cases Dealing with Jurisdiction or Right to Sue Following a Merger | |
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| Additional Recent Cases | |
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| Index | |