How to draft better agreements and contracts

One of the first things a transactional lawyer learns out of law school is that, when in doubt, finding something somebody else has written that could fit the deal structure you’re working on is your best bet in getting something turned around quickly.  In fact, entire industries (see:  knowledge management, enterprise search applications, etc.) have been built around this, with the legal industry being a natural consumer of these products.  For transactional lawyers, many have turned to SEC Filings providers.  The question is why, followed up with a quick “how can we do it better”?

The reason transactional lawyers have turned to SEC filings is that they contain SEC Exhibits, many of which contain material contracts that public companies are required to disclose to the investment community.  Here are a few relevant examples of meaty, deal-containing exhibits that transactional lawyers want to chew on and then reproduce in their own agreements:

• SEC Exhibit 1 – Underwriting Agreements
• SEC Exhibit 2 – Acquisition, Reorganization, Merger and Liquidation Agreements
• SEC Exhibit 3 – Articles of Incorporation and By-laws
• SEC Exhibit 4 – Security Section Holders Rights Documents
• SEC Exhibit 5 – Legal Opinions of Counsel - usually boilerplate, but occasionally contains a “gotcha”
• SEC Exhibit 8 – Tax Related Opinion Letters
• SEC Exhibit 9 – Voting Trust Agreements
• SEC Exhibit 10 – Material Contracts – a real catch-all, but a gold mine of legal agreements and contracts.  You can see hundreds of thousands of these organized by document category at www.RealDealDocs.com and its preview site for legal agreements and contracts. 
• SEC Exhibit 99 – Miscellaneous filings - another catch-all category

Of course, the challenge is that it is a pain in the ass to find what you’re looking for from these exhibits unless you know exactly which company filed the exact type of document that you need to find.  Good luck there!  With some providers, you can do a title search within certain types of exhibits, but of course there you are hoping that the filing company gave a very precise title in some document filing tags to the specific exhibit you are searching within, regardless of the actual title of the agreement.

RealDealDocs.com, from Practice Technologies Inc., makes it much easier by organizing all the legal agreements and material contracts by the type of document, and giving you powerful search tools to find them.  For example, if you are looking for a merger agreement, an executive employment agreement, or maybe a revolving credit agreement from public companies, you might find these within SEC Exhibits 2, 10, or 99 across a variety of filings, including SEC Filing Form 8-k, SEC Form 10-k, etc.  How do you know where to start?  RealDealDocs.com makes it easy by providing you with easy to use search forms for the type of document you want to find, regardless of the source.

I encourage all of you frustrated, efficiency-seeking lawyers to give RealDealDocs.com a try.  While it’s not cheap (less than $70/month, and much less for longer term memberships), the leverage it will provide you in terms of finding the best documents drafted by the top law firms will be tremendous.  You’ll negotiate better deals, save hours in drafting documents or clauses from scratch (you can even find specific deal clauses from deals), and get the heck out of the office that much earlier while leaving behind happier clients.  Mention this post in an email to sales@realdealdocs.com and they’ll even knock $30 off your membership, which you can cancel at any time.  (Fair disclosure – I co-founded this company.  I don’t get a kickback, but I will personally guarantee they take care of you on this.)

Have any better tips on finding and leveraging these types of legal agreements?  Comment away!

Is the Merger Mania back?

Actually, no.  But we are seing some indications that strategic buyers are at least tip-toeing back into the mergers and acquisitions market.

For several years, the access to cheap credit provided the liquidity and leverage to fuel the largest acquisitions boom in the past 20 years.  Private equity firms were increasingly able to bid up prices using cheap capital and aggressive capital structures, sidelining many strategic acquirers who needed to justify acquisitions using more traditional models.  With the credit markets drying up in the past 18 months, private equity firms have been forced out of the game, and there is little indication that we’ll see any return of the mania until the credit markets at least return to normal.

However, there are some indications that strategic buyers are gradually stepping up efforts to take out rivals and expand market share, even as share prices have fallen in the past eight months.  Foreign companies are taking advantage of the cheap dollar to acquire US-based rivals, most prominently InBev’s acquisition of Anheuser-Busch – see agreements involving Anheuser-Busch here.  And some US-based companies are also making noise:

• Skechers USA bid on Heelys for less than 15% of what it was priced for just 2 years ago (see many Skechers agreements here), and
• CVS Caremark Corp made an unsolicited bid for Longs Drugs for $3+ billion last week as well.

We’ll be posting these merger agreements alongside our library of millions of legal agreements and clauses from top law firms and the largest companies in the world over the coming weeks.  Of course, we’ll be keeping an eye on the overall market trends on not just the mergers and acquisitions space but also across the many other practice areas we cover.