How in-house counsel can work effectively with M&A counsel.

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2. BY FRANK FLETCHER AND KEITH E. GOTTFRIED

3. You are in-house counsel at ACME Manufacturing Corporation,
a leading publicly held manufacturer of widgets based in
California’s Silicon Valley with close to a $1 billion in market
capitalization. As the only other in-house counsel at ACME
other than the general counsel, your responsibilities include
securities compliance, corporate governance and board matters.
In addition, to the extent that ACME considers or pursues any
mergers and acquisitions (M&A) transactions, given your past
experience as an up-and-coming M&A lawyer with a prominent
law firm based in New York City, you are also responsible for
shepherding any such transaction and addressing the many
legal issues that arise in connection therewith. Assuming that
the M&A transaction goes further than a draft letter of intent
or term sheet, you may also be responsible for managing the
outside counsel that would be retained to represent ACME in
connection with the potential M&A transaction.
ACC Docket 53 May 2011

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

6. the advantage of providing ACME’s shareholders with — among other things — roles, responsibilities, expec-
a liquidity event earlier, and generally provides greater tations, goals and objectives.
certainty of closing, than a one-step cash merger. While Based on our past M&A experiences, we have prepared
ACME’s board of directors wants to move quickly, the a list of 100 issues that should be clarified sooner rather
sale of ACME will likely be a complicated and lengthy than later with outside M&A counsel, but are often not ad-
M&A process. The GC has told you that you will be the dressed, becoming silent “elephants in the room.”
legal “quarterback” during this process, and will need to
take an active role in overseeing all legal aspects of it and Assessing qualifications of M&A counsel
the possible transaction. For the next few months, this 1. Understand whether M&A counsel have the
M&A process, and any transaction that is derived from necessary competency, experience and depth for
it, will be your highest priority. the transaction you are contemplating. Ascertain
You finally have your “bet the company” transaction, whether M&A counsel have experience with the type
which means that allowing your M&A counsel to go on of transaction structures that you are considering.
“auto-pilot” is no longer appropriate. For the first time 2. Understand whether M&A counsel have not only the
since coming to ACME, you may actually need to draw appropriate M&A expertise, but also the appropriate
on your extensive M&A experience as you seek to man- expertise in any applicable specialty areas, such
age your M&A counsel — making sure that there is a as tax, antitrust, litigation, intellectual property,
clear understanding of ACME’s goals and objectives, and government contracts and employee benefits.
the most optimal path to accomplish them. ACME can- 3. Understand whether M&A counsel will need to
not risk having its sales process collapse because M&A draw on additional legal resources from outside
counsel got hung up on deal points that are insignificant their firm (e.g., local counsel, regulatory counsel,
or irrelevant to ACME. The contemplated transaction is Delaware counsel, international counsel, etc.).
also relatively complicated, and given that this is a large 4. Understand whether your M&A counsel have the
public company transaction, there are fiduciary duty, necessary industry expertise for the transaction
SEC compliance and regulatory approval issues that will you are contemplating. If not, consider whether
all need to be carefully and timely addressed. You are industry expertise is relevant to your transaction.
naturally concerned that the outside lawyers who have 5. Ask for copies of publicly-filed deal documents
handled ACME’s M&A work in the past may not have the (definitive acquisition agreements, SEC filings, etc.)
appropriate depth and experience for the contemplated for precedent M&A transactions that members
transaction. Given the complexity of the contemplated of the proposed “deal team” have prepared.
transaction, the M&A counsel deal team, which consisted 6. Ask your investment bankers (if already retained)
of a few lawyers in the past, would likely be significantly whether they think your M&A counsel would
larger as you will need to draw on lawyers from various be a good fit for the contemplated transaction.
specialties. There is also the possibility that no transac- If the answer is no, ask them to recommend
tion may ever get done, and the company still ends up a number of law firms for you to consider.
with a huge legal bill. As such, careful management of 7. Understand how familiar your intended M&A
legal fees should also be addressed. counsel is with your company. If historical
This scenario may seem familiar to many of you. Like knowledge of the company is critical,
the fictional counsel for ACME, there are few situa- consider creating a role in the transaction
tions that are more demanding and taxing on in-house for your historical corporate counsel.
counsel than a “bet the company” or significant M&A 8. Confirm that M&A counsel have cleared conflicts
transaction. There are also few situations where out- with respect to not just the company, but to all
side counsel is required to develop a closer and more third parties that may express an interest in a
intimate relationship with its corporate client and transaction with the company as well. Also, confirm
in-house counsel than a significant M&A transaction. that they have cleared conflicts with respect to
While in-house counsel will typically be dependent on each director and officer of the company.
outside M&A counsel for most of the day-to-day draft-
ing and negotiating of transaction agreements, and the Staffing the transaction
preparation of related SEC and other regulatory filings, 9. Understand how M&A counsel intends to staff
it is important that the relationship between in-house the transaction, for example, the mix of associates
and outside M&A counsel be appropriately clarified and and partners and the various legal specialties
calibrated. This way, there is a clear understanding of that will be called upon from time to time.
ACC Docket 56 May 2011

7. 10. Ask to have all the proposed lawyers identified Legal fees and expenses
in advance and request copies of each of their 18. Understand whether M&A counsel would
bios. Set up a notification or approval process consider discounting standard hourly rates.
for new lawyers to be added to the team. 19. Understand whether M&A counsel would consider
11. Ask to meet all the proposed lawyers before any alternative fee billing arrangements.
proceeding with the chosen law firm. 20. Determine whether to have M&A counsel comply
12. Ask for a list with detailed contact information with any formal billing policy of the company’s
for the day-to-day transaction-working group. legal department with respect to outside counsel
13. Ask for a list of recent precedent M&A fees (whether existing or to be created and
transactions for each of the proposed implemented). For example, will M&A counsel
lawyers to be assigned to the matter. bill for travel time or multiple attorneys attending
14. Understand which lawyers will be the same meeting? What about internal status
responsible for the majority of the work. conference calls where multiple attorneys (but
15. Understand which lawyer will be your not client representatives) are present?
primary day-to-day contact. 21. Understand what kind of expenses M&A counsel
16. Understand whether the partner at the law expects you to be responsible for (e.g., word
firm that “pitched” you for the role of M&A processing, fax and copy charges, secretarial
counsel will be involved in the transaction, or overtime, overhead allocations, etc.).
if he will pass it off to another colleague. 22. Consider whether to have M&A counsel
17. Inquire of any near-term commitments agree to your legal department’s expense
(vacation, etc.) that may make one or two of reimbursement policy, be it an existing one or
the key members of your M&A legal team one that would be created and implemented
unavailable at an inopportune time. in the wake of this new matter.
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ACC Docket 57 May 2011

8. 23. Understand how often M&A counsel Timing
will invoice you. 32. Explain to M&A counsel what the company’s
24. Clarify with M&A counsel how often you expectations are with respect to timing (e.g.,
expect to receive updates of fees incurred timing of negotiations, board and other
(weekly, biweekly, monthly, etc.). internal approvals, signing of definitive
25. Consider whether to have your CFO meet with agreements, closing of transaction, etc.).
M&A counsel to discuss anticipated legal fees. 33. Discuss with M&A counsel whether the company’s
Consider also that the more involved your CFO is timing expectations are reasonable and/or realistic.
in the retention and fee negotiation process, the If not, discuss strategies for communicating
less chance that you as in-house counsel can be that to the board and/or management.
reasonably accused of blindsiding the executive 34. Consider whether to ask M&A counsel for
team with unanticipated costs. Also, your CFO a detailed week-by-week timetable for the
may be able to play the role of “bad cop” and completion of the transaction. Ask M&A counsel
can put the “hammer down” for cost controls. to footnote any such timetable with a discussion
26. Consider whether to have M&A counsel of circumstances under which such a timetable
provide a forecast or budget for legal fees to be may not be met. Discuss how often the detailed
incurred in connection with the transaction or timetable should be updated and circulated.
particular stages thereof (e.g., due diligence, 35. Discuss with M&A counsel how deviations
confidentiality and other preliminary agreements, from the projected timetable will be
definitive agreements, SEC filings, closing of communicated and addressed.
the transaction, etc.). Would such a forecast or
budget be helpful? Would M&A counsel be held Communication protocols
accountable to such a forecast or budget? 36. Discuss with M&A counsel the protocols
27. Discuss with M&A counsel partnering opportunities for communications between M&A
with your legal department as a way to reduce counsel and in-house counsel.
fees and expenses. 37. Discuss with M&A counsel the protocols
28. Discuss with M&A counsel partnering opportunities for communications between M&A counsel
with your day-to-day corporate counsel, such that and the company’s non-legal personnel.
any learning curve issues (and the fees that would 38. Discuss with M&A counsel how the internal and
be incurred as a result thereof) can be avoided. external deal teams should best communicate
29. Discuss with M&A counsel whether it or the with each other and collaborate (weekly
company should consider retaining temporary conference calls, email, online document
or contract attorneys as a way to reduce fees work spaces, instant messaging, etc.).
and expenses. This could help to avoid unduly 39. Discuss with M&A counsel whether they should be
consuming internal legal resources otherwise contacting individuals inside your company without
needed to close the business transactions going through in-house counsel. At a minimum,
that keep your company in business. you should be copied on all such communications.
40. Discuss with M&A counsel whether they
Retention of other advisors should be communicating directly with your
30. Discuss with M&A counsel the need for the CEO or CFO. At a minimum, you should
company to retain any other external advisors be copied on all such communications.
(e.g., investment bankers, accountants
and auditors, valuation experts, etc.). Chain of command
31. Discuss with M&A counsel who will be responsible 41. Discuss with M&A counsel the chain of
for reviewing and commenting on the engagement command from the company to the outside
letter agreements with other external advisors. 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.
ACC Docket 58 May 2011

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10. 43. Clarify with M&A counsel who should be 55. Communicate to M&A counsel the extent that
perceived as the transaction’s quarterback — time is of the essence, and explain why.
the outside counsel or the in-house counsel.
Risks
Roles and responsibilities 56. Discuss with M&A counsel the risks
44. Discuss with M&A counsel how roles and (legal and business) to the company
responsibilities will be divided between of pursuing the transaction.
in-house and outside counsel. 57. Discuss with M&A counsel the potential
45. Discuss with M&A counsel whether valuation/ litigation risks to the company (and the
price discussions will be handled by an experienced board) of pursuing a transaction and the
in-house team, the investment bankers, executive risks of not pursuing a transaction.
management, specialized advisors or M&A counsel. 58. Discuss with M&A counsel various strategies for
46. Discuss with M&A counsel who will have mitigating the anticipated risks to the transaction.
responsibility for setting up and maintaining 59. Discuss with M&A counsel whether any
the electronic data room –– outside or inside insurance should be considered to mitigate
counsel, paralegals or investment bankers. any legal risks of the transaction (e.g.,
47. Discuss with M&A counsel what documents representation and warranty insurance).
will be needed for the preliminary stages 60. Discuss with M&A counsel the risks to the
of the transaction (e.g., confidentiality and company in pursuing a transaction. If a sale of the
exclusivity agreements, term sheets and letters company is being pursued, there is the possibility
of intent), and clarify who has ownership of talent leakage as the process continues. This
over the initial drafting of those documents can be mitigated, to some extent, by the adoption
and the timing for the preparation thereof. and implementation of retention plans.
61. Discuss with M&A counsel the potential harm to the
Visibility of M&A counsel company if the transaction is not completed. This
48. Discuss with M&A counsel how visible they should includes the fact that the acquiring company might
be to the other side and when they should be be a potential competitor, and during the course
invisible. If the company has an experienced deal of the due diligence process, your company might
team, then it might be reasonable for the in-house provide very sensitive and confidential information,
team to be “front and center.” If the in-house deal which could affect the company’s ability to compete
team is less experienced, then it might be reasonable with such competition if the deal is not completed.
for M&A counsel to take a more prominent role.
49. Discuss with M&A counsel how visibility or Hurdles
presence on a telephone call or meeting could 62. Discuss with M&A counsel the hurdles that the
affect the dynamics of the discussions. transaction may need to surmount, including, but
not limited to, regulatory approvals, stockholder
Goals and objectives approvals, third-party consents, SEC, etc.
50. Discuss the goals and objectives
of the transaction early. Showstoppers
51. Clarify with M&A counsel why the 63. Discuss with M&A counsel the potential
company is pursuing this transaction. “showstoppers” that could cause
52. Clarify with M&A counsel how the the transaction not to occur.
proposed transaction syncs with the 64. Discuss with M&A counsel strategies to
company’s business strategy. mitigate and avoid any “showstoppers.”
53. Clarify with M&A counsel what would need
to occur to make the proposed transaction Industry overview
less attractive to the company and less of a 65. Provide M&A counsel (and any other external
fit with the company’s business strategy. advisors) with an update on the company’s industry
54. Clarify with M&A counsel the extent to which and recent developments with respect thereto.
timing of the transaction affects, if at all, the
goals and objectives of the transaction.
ACC Docket 60 May 2011

11. Company overview (e.g., reluctance of some private equity firms
66. Provide M&A counsel (and any other external to commit to two-step tender offers and their
advisors) with an update on the company, its preference for one-step merger transactions).
products and services, go-to-market strategy, M&A,
corporate development, and other growth plans Approvals
and recent developments with respect thereto. 71. Discuss with M&A counsel what internal
and external approval processes the
Transaction structures transaction may be subject to.
67. Clarify with M&A counsel the various transaction 72. Discuss with M&A counsel what internal approvals
structures that can potentially satisfy the company’s are required before proceeding (CEO, CFO, board,
objectives. Consider whether to involve other significant or controlling stockholders, etc.).
C-level executives in these discussions (e.g., 73. Discuss with M&A counsel possible steps
CFO, treasurer, corporate development, etc.). that could be taken in advance to make
68. Understand from M&A counsel the tax these approvals easier to obtain.
consequences of the various transaction 74. Discuss with M&A counsel whether the transaction
structures under consideration. will be subject to the Hart-Scott-Rodino
69. Discuss with M&A counsel how the various Antitrust Improvements Act of 1976 (HSR).
transaction structures under consideration 75. Discuss with M&A counsel whether any HSR
affect the timing of the transaction. issues can be addressed up front to make sure
70. Discuss with M&A counsel how the various the deal is not delayed due to HSR issues.
transaction structures under consideration would 76. Discuss with M&A counsel the timing and
affect the ability of the company to attract a buyer mechanics for stockholder approvals (e.g.,
preparation and filing of a proxy statement).
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ACC Docket 61 May 2011

12. ACC Extras on… Issues to Clarify with Your M&A Counsel
ACC Docket Article
• Distressed Acquisitions: How You Can Create Value • Look Before You Leap (Oct. 2010). This third edition of
During Difficult Times (April 2010). Read this article to Deloitte’s “Look Before You Leap” survey focuses on the
learn how to reshape the business with a well-structured use of background/integrity checks when considering a
acquisition and restructured relationships with key business relationship, investment or acquisition outside
stakeholders. www.acc.com/docket/dis_acq_apr10 of the United States. www.acc.com/look-leap_oct10
• Bet the Company: Litigation from a Policyholder’s
Perspective (May 2009). This article empowers policyholders Resources
and offers guidance on how to persevere when litigation • ACC Compliance Training Portal. The ACC Compliance
hits. www.acc.com/docket/lit-ph-persp_may09 Training Portal provides information and resources
on a wide range of compliance issues that affect your
Quick References everyday professional life. With this helpful online
• Top Things to Know About M&A Involving Intel tool, you can provide the best ethics and compliance
Companies (April 2010). This article discusses the advice to your client. www.ethicsxchange.com
top things to understand when undertaking the
acquisition of an intelligence agency contractor. ACC has more material on this subject on our website.
www.acc.com/quickref/m&a-intel_apr10 Visit www.acc.com, where you can browse our resources
• Top Ten Indemnification Concerns in M&A Transactions by practice area or search by keyword.
(Mar 2009). This ACC Top Ten focuses on the more
complicated side of indemnification concerns, which usually The new GLD button lets you click to copy, print or email
is the business buyer’s side, of mergers and acquisitions. a checklist from certain ACC online resources.
www.acc.com/quickref/indem-m&a_mar09
77. Discuss with M&A counsel whether any 82. Discuss with M&A counsel any lead times
regulatory approvals or notifications will need applicable to providing board and/or
to be obtained or made in connection with committee members with briefing materials
the transaction, and the timing thereof. in connection with an M&A transaction.
78. Discuss with M&A counsel whether any 83. Discuss with M&A counsel whether in-house or
third-party consents or notices will need outside counsel will have responsibility for preparing
to be obtained or given in connection with materials that will be distributed to the company’s
the transaction, and the timing thereof. board of directors (e.g., agreement summaries,
fiduciary duty memos, reasons for transaction, risks
Board and governance issues of the transaction, proposed resolutions, etc.).
79. Discuss with M&A counsel what board of
directors and governance issues will need to be Definitive agreements
addressed as the transaction unfolds (the need 84. Discuss with M&A counsel what definitive
for board and/or committee meetings, board agreements would be customary for the
presentations, board authorizations, etc.). transaction structure being contemplated.
80. Discuss with M&A counsel the current schedule for 85. Discuss with M&A counsel whether in-house or
board and/or committee meetings and determine outside counsel will have primary responsibility
the need for any special meetings to be scheduled. for the initial drafts of the definitive agreements.
81. Discuss with M&A counsel what fiduciary duties 86. Discuss with M&A counsel the timing for the
will be applicable to members of the company’s preparation of the initial drafts of the definitive
board of directors and what steps will need to agreements.
be taken to ensure that board members comply 87. Discuss with M&A counsel what process should
with their fiduciary duties under applicable law. be followed for having the initial drafts of the
definitive agreements reviewed and discussed
ACC Docket 62 May 2011

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14. with internal groups at the company. For example, SEC filings
the representations and warranties with respect 98. Discuss with M&A counsel whether in-house or
to financial statements and other financial outside counsel will have primary responsibility
information should be discussed with, and for preparing the initial drafts of the various
reviewed by, the finance and accounting groups. SEC documents that will need to be prepared in
connection with the transaction (e.g., Form 8-K’s,
Disclosure schedules proxy statements, tender offer documents, etc.).
88. Discuss with M&A counsel whether in- 99. Discuss with M&A counsel what SEC clearance
house or outside counsel will have primary processes will need to be followed in connection
responsibility for preparing the initial with the transaction and how those processes
draft of the disclosure schedules. could affect the timing of the transaction
and the choice of transaction structure.
Deal protection issues 100. Discuss with M&A counsel any open or past
89. Understand from M&A counsel what deal SEC issues that could affect the timing of the
protection devices are available to the SEC’s review of any documents filed by the
company to protect the transaction. company in connection with a transaction
90. Discuss with M&A counsel what the (e.g., unresolved comments on your
current legal landscape is with respect to the company’s annual report on Form 10-K).
enforceability of deal protection devices.
91. Review with M&A counsel the strategic Shepherding the “bet the company”
players that might be expected to attempt to can be successful
interfere with any significant M&A transaction Shepherding a significant or “bet the company” M&A
that might be pursued by the company. transaction can be one of the most exciting events in the
career of an in-house counsel. A tremendous amount of
Transaction negotiations additional responsibility is quickly placed at the feet of
92. Discuss with M&A counsel who will have the lead in-house counsel, but with that responsibility comes the
in negotiating the terms of the definitive agreements. opportunity to evolve and/or change the future of your
93. Discuss with M&A counsel what the company forever, as M&A often does. Given the huge
negotiating approach and strategy will be. amount of legal, logistical and other work involved in
94. Discuss with M&A counsel which issues driving an M&A transaction to successful completion,
in the definitive agreement are particularly it requires an intense amount of partnering between in-
sensitive to the company and which are not. house counsel and other internal colleagues, with outside
95. Ensure M&A counsel have clarity on the M&A counsel. We hope the 100 items listed above will
issues that the company does not want provide in-house counsel with a useful roadmap for those
to allow the deal to get hung up on. issues that need to be clarified sooner rather than later
with outside M&A counsel. Following this roadmap leads
Disclosure issues to a clear understanding of, among other things, roles and
96. Clarify with M&A counsel when the company responsibilities, expectations and goals, and objectives.
would be required to publicly disclose that
it is pursuing an M&A transaction. Have a comment on this article? Visit ACC’s blog
97. Clarify with M&A counsel whether the company at www.inhouseaccess.com/articles/acc-docket.
or outside counsel would be responsible
for preparing press releases and other
communications related to an M&A transaction.
ACC Docket 64 May 2011