100 Issues to Clarify with your M&A Counsel_Fletcher-Gottfried_ACC_ACC Docket_May_2011

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

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

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  • 1. INSIDE: Canadian Briefings May 2011 Preparing for the Worst: D&O Protection and the Major Corporate Lawsuit M&A Counsel • Litigation 101 • Class Action Stats • Records Management Early Data Assessment • Social Media & Employees • Valuing Litigation
  • 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. ACC Docket 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.     ¤   ¥ "   0 2     ( (  B  3 "   6 (           1 "  # ¥   2 " ! ¥    # " # "    G    @   ( 6 ( 6 "   (   #  "  #   " 5 " G G 3 ¥     1 0 ¥ ¦   B  "    5  @  ! " C  C   3 "  2   # "   D      ¤    "  0 $ "         " ( "        #  5 "  "     8      5  $   (  7   "  $ 1 3 %  4 ( 3   2 5 " 3 "  $    " " @  5  $   7   5 3  5   $   %         %    ! "      $ 5 '  #     ¦  "        ¡    1   ( $ "         " H 1   3 "  E    "       "  A   &  ¢ !  $    # C         '   F C ¦ $     " £ "  $  1 ¥ (  ! ¥      '  E   5   7     ¤ $   ( ¦ "   ¤ #    ¡ #  ( 6 3  ¥ $    5  ¦   $   § "  4  "   5    $ 6     @       £ #   $ #    " " E      @ (   "  "  £ %       ¨   " 6    ©  $  6  C ¥ !  1 8     ( ¥   " ¢ "  ( ( 0     "  $  9 (    1  "   ¡   6   (         !  " $ 3  &  @   '  $ ¡     "         1 7    (     " 1   )   6  )    "  G  7  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 M&A 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 M&A 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 M&A 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 M&A experience as you seek to manage your M&A 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 M&A 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 M&A work in the past may not have the appropriate depth and experience for the contemplated transaction. Given the complexity of the contemplated transaction, the M&A 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 M&A 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 M&A transaction. While in-house counsel will typically be dependent on outside M&A 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 M&A counsel be appropriately clarified and calibrated. This way, there is a clear understanding of ACC Docket — among other things — roles, responsibilities, expectations, goals and objectives. Based on our past M&A experiences, we have prepared a list of 100 issues that should be clarified sooner rather than later with outside M&A counsel, but are often not addressed, becoming silent “elephants in the room.” Assessing qualifications of M&A counsel 1. Understand whether M&A counsel have the necessary competency, experience and depth for the transaction you are contemplating. Ascertain whether M&A counsel have experience with the type of transaction structures that you are considering. 2. Understand whether M&A counsel have not only the appropriate M&A 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 M&A 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 M&A 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 M&A transactions that members of the proposed “deal team” have prepared. 6. Ask your investment bankers (if already retained) whether they think your M&A 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 M&A 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 M&A 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 M&A 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 M&A 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 M&A 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 M&A legal team unavailable at an inopportune time. Legal fees and expenses 18. Understand whether M&A counsel would consider discounting standard hourly rates. 19. Understand whether M&A counsel would consider any alternative fee billing arrangements. 20. Determine whether to have M&A 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 M&A 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 M&A 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 M&A 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. We want to hear from you! Visit the Client Service section of our new website, and take our on-line client survey to tell us how we can better serve you. We’ve also added great new resources to help you with various aspects of your business, including industry-related blogs that will keep you informed of the latest legal trends. Visit our new website at fbtlaw.com 400 West Market Street | Suite 3200 | Louisville | 800-757-4094 | Offices in Indiana, Kentucky, Ohio, Tennessee and West Virginia. THIS IS AN ADVERTISEMENT. ©2011 Frost Brown Todd LLC. All rights reserved. ACC Docket 57 May 2011
  • 7. 23. Understand how often M&A counsel will invoice you. 24. Clarify with M&A counsel how often you expect to receive updates of fees incurred (weekly, biweekly, monthly, etc.). 25. Consider whether to have your CFO meet with M&A 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 M&A 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 M&A counsel be held accountable to such a forecast or budget? 27. Discuss with M&A counsel partnering opportunities with your legal department as a way to reduce fees and expenses. 28. Discuss with M&A 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 M&A 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 M&A 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 M&A counsel who will be responsible for reviewing and commenting on the engagement letter agreements with other external advisors. ACC Docket Timing 32. Explain to M&A 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 M&A 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 M&A counsel for a detailed week-by-week timetable for the completion of the transaction. Ask M&A 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 M&A counsel how deviations from the projected timetable will be communicated and addressed. Communication protocols 36. Discuss with M&A counsel the protocols for communications between M&A counsel and in-house counsel. 37. Discuss with M&A counsel the protocols for communications between M&A counsel and the company’s non-legal personnel. 38. Discuss with M&A 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 M&A 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 M&A 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 M&A 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 M&A counsel how the chain of command will be communicated to all involved parties. 58 May 2011
  • 8. 43. Clarify with M&A counsel who should be perceived as the transaction’s quarterback — the outside counsel or the in-house counsel. 55. Communicate to M&A counsel the extent that time is of the essence, and explain why. Risks Roles and responsibilities 44. Discuss with M&A counsel how roles and responsibilities will be divided between in-house and outside counsel. 45. Discuss with M&A counsel whether valuation/ price discussions will be handled by an experienced in-house team, the investment bankers, executive management, specialized advisors or M&A counsel. 46. Discuss with M&A 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 M&A 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 M&A counsel 48. Discuss with M&A 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 M&A counsel to take a more prominent role. 49. Discuss with M&A 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 M&A counsel why the company is pursuing this transaction. 52. Clarify with M&A counsel how the proposed transaction syncs with the company’s business strategy. 53. Clarify with M&A 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 M&A 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 M&A counsel the risks (legal and business) to the company of pursuing the transaction. 57. Discuss with M&A 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 M&A counsel various strategies for mitigating the anticipated risks to the transaction. 59. Discuss with M&A counsel whether any insurance should be considered to mitigate any legal risks of the transaction (e.g., representation and warranty insurance). 60. Discuss with M&A 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 M&A 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 M&A 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 M&A counsel the potential “showstoppers” that could cause the transaction not to occur. 64. Discuss with M&A counsel strategies to mitigate and avoid any “showstoppers.” Industry overview 65. Provide M&A 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 M&A counsel (and any other external advisors) with an update on the company, its products and services, go-to-market strategy, M&A, 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 M&A counsel what internal and external approval processes the transaction may be subject to. 72. Discuss with M&A counsel what internal approvals are required before proceeding (CEO, CFO, board, significant or controlling stockholders, etc.). 73. Discuss with M&A counsel possible steps that could be taken in advance to make these approvals easier to obtain. 74. Discuss with M&A counsel whether the transaction will be subject to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). 75. Discuss with M&A 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 M&A counsel the timing and mechanics for stockholder approvals (e.g., preparation and filing of a proxy statement). Transaction structures 67. Clarify with M&A 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 M&A counsel the tax consequences of the various transaction structures under consideration. 69. Discuss with M&A counsel how the various transaction structures under consideration affect the timing of the transaction. 70. Discuss with M&A counsel how the various transaction structures under consideration would affect the ability of the company to attract a buyer Feel good about your law firm. Corporate Finance Mergers and Acquisitions Intellectual Property Product Liability Defense Energy and Agribusiness Securities Litigation Life Sciences Intellectual Property Real Estate Bankruptcy/Financial Institutions Commercial Litigation Employment and Benefits Minneapolis | Denver | lindquist.com ACC Docket 61 May 2011
  • 10. ACC Extras on… Issues to Clarify with Your M&A 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 M&A 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/m&a-intel_apr10 • Top Ten Indemnification Concerns in M&A 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-m&a_mar09 77. Discuss with M&A 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 M&A 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 M&A 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 M&A counsel the current schedule for board and/or committee meetings and determine the need for any special meetings to be scheduled. 81. Discuss with M&A 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. ACC Docket 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 M&A counsel any lead times applicable to providing board and/or committee members with briefing materials in connection with an M&A transaction. 83. Discuss with M&A 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 M&A counsel what definitive agreements would be customary for the transaction structure being contemplated. 85. Discuss with M&A counsel whether in-house or outside counsel will have primary responsibility for the initial drafts of the definitive agreements. 86. Discuss with M&A counsel the timing for the preparation of the initial drafts of the definitive agreements. 87. Discuss with M&A 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 M&A 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 M&A counsel what deal protection devices are available to the company to protect the transaction. 90. Discuss with M&A counsel what the current legal landscape is with respect to the enforceability of deal protection devices. 91. Review with M&A counsel the strategic players that might be expected to attempt to interfere with any significant M&A transaction that might be pursued by the company. Transaction negotiations 92. Discuss with M&A counsel who will have the lead in negotiating the terms of the definitive agreements. 93. Discuss with M&A counsel what the negotiating approach and strategy will be. 94. Discuss with M&A counsel which issues in the definitive agreement are particularly sensitive to the company and which are not. 95. Ensure M&A 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 M&A counsel when the company would be required to publicly disclose that it is pursuing an M&A transaction. 97. Clarify with M&A counsel whether the company or outside counsel would be responsible for preparing press releases and other communications related to an M&A transaction. ACC Docket SEC filings 98. Discuss with M&A 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 M&A 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 M&A 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” M&A 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 M&A often does. Given the huge amount of legal, logistical and other work involved in driving an M&A transaction to successful completion, it requires an intense amount of partnering between inhouse counsel and other internal colleagues, with outside M&A 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 M&A counsel. Following this roadmap leads to a clear understanding of, among other things, roles and responsibilities, expectations and goals, and objectives.∑ Have a comment on this article? Visit ACC’s blog at www.inhouseaccess.com/articles/acc-docket. 64 May 2011