the acquisition term sheet from the seller s perspective
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Jones, Day, Reavis & Pogue. The Acquisition Term Sheet from the Seller’s Perspective. By Conrad E. J. Everhard. When You Cut Your Deal, Don’t Stop Negotiating at the Purchase Price. 1. Structure Liquidity Personal Liability Employment Package Due Diligence Non-compete.

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when you cut your deal don t stop negotiating at the purchase price
When You Cut Your Deal, Don’t Stop Negotiating at the Purchase Price


  • Structure
  • Liquidity
  • Personal Liability
  • Employment Package
  • Due Diligence
  • Non-compete


Bring Out Your Dirty Laundry at the Outset

make sure that purchase price is liquid
Make Sure that Purchase Price is Liquid


  • Market Risk Pre-Closing
  • Market Risk Post-Closing
market risk pre closing
Market Risk Pre-Closing
  • Two kinds of pricing: Fixed Exchange Ratio or Fixed Price
  • Fixed Exchange Ratio: Share risks of upside\downside after announcement
  • Fixed Dollars: Upside protection held by Buyer and downside protection held by Seller
  • Collars, Floors, Price Protection, Closing Price
market risk post closing
Market Risk Post-Closing
  • Securities Laws - US, Europe, Asia
  • Insider Trading Policies of Buyer
  • Pooling Rules (Affiliates)
  • Contractual Restrictions
  • Market Conditions and Other Intangibles
strategies for enhancing liquidity of u s securities
Strategies for Enhancing Liquidity of U.S. Securities
  • Insist on Registration Statement at Closing
      • Guarantee Trading Windows
  • Do Your Due Diligence
  • Don’t Become an Insider or Become a Super-Insider
  • Early Publication of Combined Financials
  • Hedge and Put Mechanisms, Price Protection
don t give the purchase price back
Don’t Give The Purchase Price Back


  • Purchase Price Adjustment
  • Representations and Warranties
  • Personal Indemnities
strategies for limiting liability
Strategies For Limiting Liability
  • Watch Out for Contingent Liabilities
      • No Bearing to Actual Loss
  • Watch Out for Measurement Date
  • Coordinate Interaction Between PPA and Indemnities (Don’t Double Count)

Purchase Price Adjustment

strategies for limiting liability12
Strategies for Limiting Liability
  • Factor Exposure into Purchase Price
  • Eliminate Post-Closing Effects fromLiability Exposure
  • Limit Recourse to Escrow Holdback
      • Risk Shifting and Catastrophic Exposure

Representations and Warranties

strategies for limiting liability13
Strategies for Limiting Liability
  • Incentivize Buyer to Act Reasonably
    • Deductibles and Caps, Cost Sharing
    • Limit Survival Period of Warranties
    • Place Control on Third Party Claims
    • Put Legal Fees of Buyer at Risk
  • Offer Alternatives
    • Comprehensive Due Diligence
    • Opinions of Counsel
    • Insurance, Others