Over the past two decades, M&A mavens Richard Climan of Hogan Lovells and Joel Greenberg of Arnold & Porter have perfected the use of the illustrative “mock negotiation” as an educational tool to train aspiring deal practitioners in the art of negotiating complex M&A transactions. They recently squared off at the 19th Annual University of Texas M&A Forum in Dallas to demonstrate the negotiation of several controversial provisions in the definitive agreement for the acquisition of a privately held company. The topics they debated include:

• Key differences between acquisitions by strategic acquirers and acquisitions by financial sponsors
• Gaps in the coverage of representation & warranty insurance
• Key differences between acquisitions by large-cap strategic acquirers and acquisitions by smaller strategic acquirers
• Limitations on the usefulness of deal-points studies in acquisition negotiations
• Consequential damages exclusions in indemnification provisions
• Use of arbitration to resolve post-closing indemnification disputes
• Non-meritorious claims indemnities
• “10b-5” representations

During their presentation, Rick and Joel stepped out of character frequently to explain and illuminate their negotiating stances.