# Mergers and Acquisitions/Introduction/Course Outline
### The Role of the Transactional Lawyer

* Adding value to the Transaction
** By structuring the transaction to enhance financial return, reduce risk and limit costs.
** Using multiple skill sets to shepherd the Transaction.
** Working as a member of a team, including the client and other professionals.
** Facilitating the consummation of a beneficial Transaction.
* Reduction of Risk
** Planning and assisting the investigatory due diligence process
** Identifying business, regulatory and legal risks
* The attorney as the negotiator
** Enhancing value through negotiation
** Negotiating the allocation of financial and legal risk between the parties
** Creating mutually beneficial solution
*** Empathize with the position of both the Buyer and the Seller
*** Be a facilitator who finds solutions to issues which accommodates both the Buyer and Seller
* Documentation of a Transaction
** Providing congruency among the expectations of the business client, the negotiated transaction and the documentation of the transaction.
** Facilitating the transaction by coordinating the documentation with the results of due diligence
** Using familiar formats and procedures of documentation that reflect the Transaction.

### Motivations for Mergers and Acquisitions

* Exogenous and Endogenous factors Affecting, Motivating and Dissuading Acquisitions
* Motivations of the Purchaser and the Seller of a Business
** The acquisitive business
** The motivated seller

### Merger and Acquisition Basics

* Mergers vs. Acquisitions
* Horizontal vs. vertical vs. conglomerate
* Public vs. Private Targets
* Basic Acquisition Structures
** Stock Acquisition
** Asset Acquisition
** Stock Merger

### Metamorphosis of an Acquisition/Divestiture

* General Stages of Selling a Business
* The Issue of Confidentiality and the Utility of Confidentiality Agreements

### Elementary Accounting for Business Lawyers

* The concept of Generally Accepted Accounting Principles (GAAP).
** The role of the Financial Accounting Standards Board
** The role of the Securities and Exchange Commission
* Formation and analysis of Financial Statements
** Income Statement, Balance Sheet and Statement of Cash Flows
** Analysis of Notes to Financial Statements
** The accounting for Goodwill and Other Intangible Assets
* Accounting for Acquisitions
** Former Rules APB No. 16 and 17
*** Criticism of Pooling of Interests Accounting
*** Possible alternative methods of Accounting
** New Rules FAS 141 and 142
*** Elimination of Pooling of Interest for Business Combinations
*** Elimination of prescribed amortization of goodwill
*** The new concept of “Impairment” of goodwill
*** Effect upon M&A activity
VI. Elementary Valuation Techniques
A. Valuation Analysis
B. Synergistic Transactions
VII. PRELIMINARY NEGOTIATIONS, INVESTIGATION AND
A. Preliminary Contact and Negotiations
B. Letters of Intent
VIII. STRUCTURING THE TRANSACTION
A. Considerations for the structure of the transaction
B. General Description of Basic Acquisition Structures
C. The Asset Purchase
D. The Stock Purchase
E. Asset vs. Stock Transaction from the Perspective of the Buyer and Seller
F. The Cash-Out Merger Transaction
G. Tax Deferred Reorganizations
H. Special Tax Issues and Opportunities Involving S Corporations
I. Other Tax Concepts
IX. DOCUMENTATION OF THE TRANSACTION
A. The Definitive Acquisition Agreement
B. Purchase price payment provisions
C. ALLOCATION OF RISK BETWEEN BUYER AND SELLER
D. Covenants
E. Conditions for Closing and Termination
X. PARTICULAR RECURRING LEGAL AND BUSINESS ISSUES
A. Labor issues
B. Retention of Employees
C. Issues Relating to Intellectual Property
D. Environmental issues
XI. Financing the transaction
A. Determination of the Amount of Financing Necessary to Complete a Transaction
B. Basic Financing Techniques
C. Special issues related to highly leveraged transactions
XII. ISSUES RELATING TO THE ACQUISITION OF A PUBLICLY HELD
A. Alternate Processes Of Acquiring A Publicly Held Company
B. Security Law Issues
C. State Anti-Takeover Provisions
D. Duties of the Board of Directors
E. The Friendly Negotiated Merger
F. Defensive Techniques and the Response to the Hostile Offer
G. State Anti-Takeover Provisions
H. Second Step Freezeout Mergers
XIII. ANTITRUST ASPECTS OF ACQUISITIONS
A. Principal Antitrust Laws Governing Mergers (§7 of the Clayton Act)
B. Determination of an "undue share of market"
C. Hart-Scott-Rodino Premerger Notification Requirements