The Merger Agreement as a Contract

Recently, in the Mergers, Acquisitions, and Split-Ups course here at Harvard Law School, two preeminent M&A practitioners discussed The Merger Agreement as a Contract. Richard Climan, head of the M&A group at Cooley Godward Kronish, and Eileen Nugent, co-head of the private equity group at Skadden and a member of the advisory board of the Harvard Law School Program on Corporate Governance, went through all the components of an acquisition agreement, from the description of the deal to the deceptively labelled “boilerplate”. They stressed the role of the acquisition agreement for allocating risk between the parties, and as a roadmap for the transaction between signing and closing (and beyond). Mock negotiations between Climan and Nugent served to demonstrate what is at stake in certain key provisions. Climan and Nugent discussed the impact of recent events and court decisions with Vice Chancellor Leo Strine, Jr., who is one of the class’s teachers and who has authored many of those decisions himself on the Delaware Court of Chancery. Professor Robert Clark, Strine’s co-teacher and former Dean of Harvard Law School, added some perspective from the boardroom. The video of the panel is available here. (video no longer available)