Unbundled Bargains: Multi-agreement Dealmaking in Complex Mergers and Acquisitions
Why are some bargains memorialized in dozens of related agreements, rather than one definitive agreement? This Article uses mergers and acquisitions (M&A) deals as a lens through which to understand why some bargains are governed by arrangements that this Article calls “unbundled bargains.” In an unbundled bargain, elements of a complex deal are broken out and memorialized in separate, but related, agreements. Unbundled bargains are common in M&A deals — these deals are governed by a definitive acquisition agreement, and also by employment agreements, transition services agreements, intellectual property assignment agreements, and many other ancillary agreements that shape the deal’s terms.
This Article shows that the boundaries of a deal extend beyond the acquisition agreement and into the manifold parts of an unbundled bargain. In the process, this Article makes three contributions to the literature. First, it provides a comprehensive account of why ancillary agreements exist, and shows that M&A deals are, invariably, governed by unbundled bargains. Second, it shows that unbundled bargains reduce dealmaking costs ex ante and deal enforcement costs ex post by making deals more modular and improving the quality of each modular part. Third, it shows that reframing many related agreements as one unbundled bargain has significant implications for contract theory and transactional practice.