Spring 2002
Co-Instructors: Randy S. Segal and David H. Engvall
Email addresses: rsegal@hns.com
david.engvall@motient.com

Course Syllabus/Reading

• Course Materials: Mergers and Acquisitions, Cases and Materials, William J. Carney (Foundation Press 2000) ('Casebook')
• 2001 Casebook Supplement (Foundation Press 2001) ("Supplement")
• Model forms, hypotheticals, articles and other materials to be picked up at copy center

Week I, January 9 Introduction and Overview to Corporate Acquisitions

• Course Overview and Takeaways
• Forms of Acquisitions
• The Acquisition Mating Dance
• An Overview of Considerations in Acquisitions

  Materials:

  Casebook, Chapter 1, Section 5, 13-20;
  Chapter 2, 34-54;
  Chapter 6, 563-613
  Handout Index D.2 ("How Culture Clash Killed a Merger")

Week II, January 16 Striking a Deal

• The Role of Management, Outside Counsel and Inside Counsel
• The Negotiations
• The Letter of Intent

  Materials:

  Casebook and Supplement (see Week I materials)
  Sample Letters of Intent, Handout Index B-1 to B-4

  Unocal Corporation, Casebook Chapter 3, 73-81
  Smith v. Van Gorkom, Casebook Chapter 3, 142-157
  Revlon, Casebook Chapter 3, 157-166

Week III, January 23 The Due Diligence Process

• What is Due Diligence?
• Why Due Diligence - interplay with Letter of Intent and Transaction Documents

  Materials:

  Casebook, Chapter 7, Section 1, 633-674 [be prepared to discuss Problem 3, 668-674]
  Appendix C. Due Diligence Checklist
  Effectively Managing the Overall Due Diligence Process (Handout Index D.1)

Week IV, January 30 The Transaction Agreements

• Basic Agreements: Acquisition/Merger Agreement and Transition/Implementation Agreements
• Using Due Diligence and Other Methods to Maximize Leverage/Position

  Materials:

• Casebook, Chapter 7, Section 2, pages 674-688
  Appendix D. Merger Agreement and Plan of Reorganization
  Handout Index B.5 (Asset Sales Agreement)
  [Be prepared to discuss "Problem" on 674 and Questions on 677-678.]

Week V, February 6 Lawyer as Negotiator and Strategic Team Leader: Structuring a Deal

• Some legal and background considerations
• Interdisciplinary and practical considerations
• Blocking and tackling techniques

  Materials:

  Casebook, Chapter 8, 689-778
  Supplement, 101 (bottom) -102

Week VI, February 13 A Team Exercise: Putting it all Together

• This class will be a mock negotiations session with assigned roles as in-house, outside counsel and business people for each of acquiror and target; negotiations materials to be provided at end of prior class for reading/analysis before class.

Week VII, February 20 Words of Caution and Considerations between Signing and Closing

• Agreement provisions regarding operations during the "twilight zone"
• Closing safeguards and risks as to interim activities
• Making decisions and commitments during interim period
• Legal constraints: securities laws, antitrust laws, and others

  Materials:

  Handouts including re: sample operating covenants, closing safeguards, memoranda re: applicable legal constraints
  Casebook, Chapter 6, 613-632

Week VIII, February 27 Lawyer as Negotiator and Strategic Team Leader: Closing a Deal

• Timelines and Closing Checklists
• Conditions Precedent
• Regulatory Approvals

  Materials:

  Appendix D and Handout Index B.5

Week IX, March 6 Handing off the Baton: Post-Closing

• Post-closing planning
• Transition Issues
• Issues in blending two companies

  Materials:

  Handout Index C.1 to C.4 (Advice Letters)

Week X, March 20 The Securities Laws: An Overview of Issues Affecting Acquisitions

• Overview of securities law issues implicated in transactions

  Materials:

  Casebook, Chapters 9 and 10 (sections 1-33), 781-788 (middle), 799-827.
  Supplement, 102 (middle) -108

Week XI, March 27 Fiduciary Duties of the Board of Directors, Part I

• The Business Judgment Rule in the M&A Context
• Duty of Loyalty
• Duty of Care
• Reliance on Outside Advisors

  Materials:

  Casebook, Chapter 3, 66-84, 141-167
  Delaware Code Section 144 (Handout Index E.1)

Week XII, April 3 Team Exercise #2 : Putting it all Together

• This class will consist of management planning sessions with assigned roles as Board members, in-house counsel, outside counsel and business people for each of acquiror and target; materials to be provided at end of prior class for reading/analysis before class.

Week XIII, April 10 Fiduciary Duties of the Board of Directors, Part II

• "No Talk" and "No Shop" Clauses: Does the Duty of Care Always Mean a Duty to Listen?
• Terminating a "Binding" Agreement: When Duty Calls
• "Fiduciary outs" and Material Adverse Change clauses

  Materials:

  Casebook, Chapter 3, 174 (Problem)
  Supplement, 10-35 (optional: 35-60)
  Handouts on Tyson Foods case and Enron/Dynegy merger (Handout Index E.2 to E.5)

Week XIV, April 17 Wrap Up

Examination Period