Wednesday, January 28, 2004

NEGOTIATING AGAINST YOURSELF
Back in late December, I got a draft of an Asset Purchase Agreement from Buyer's counsel. Great, so I start my review, send comments back and forth to my client, getting them in shape for transmission to the Buyer's counsel.

Then, what to my wondering eyes should appear, but a new draft from Buyer's counsel. This one, more pro-buyer -- adding reps and warranties, requiring descriptions of all contracts on the schedules -- not just a list, mind you, but descriptions! Looks like the lawyers' full employment program. And then the indemnity deductible or basket and the cap are removed. What, you think we won't notice? My comment puts them back in, of course, along with "sole and exclusive remedy" language. Boneheads.

Here's a little tip. When sending out your first draft, don't plan on taking another swipe at things and trying to toughen up your document later. Not only is it bad form, it makes you look sloppy and, worse, stupid.

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