Essays, articles, and commentary on M&A, venture capital, Founder dynamics, and emotional intelligence from The Soul of the Deal and four decades of dealmaking.
The Soul of the Deal, From Day One to Exit
Rodin Books
The Soul of the Deal is conversational in tone and humorous in approach; consisting entirely of genuine deal stories and negotiating dialogue, 50 Morgenstern’s Maxims, and 17 Key Takeaways.
Marc’s philosophy (based on selling encyclopedias door-to-door, following the Grateful Dead, and 100’s of startups and transactions) fuses to create a unique negotiating style premised on flexible jam band philosophy, engaged listening to respond (not rebut), and persuading (not bludgeoning). A Dealjammer©.
“Every business buyer, seller, and aspiring dealmaker should read this instant classic. I loved it.”
Steve McLaughlin, Founder and CEO of Financial Technology Partners
3-time Fintech Dealmaker of the Year
Articles
For 40+ years, Marc Morgenstern’s provocative articles about M&A, venture capital, startups, and business negotiating have appeared in leading business, academic, and legal publications. Most articles arose when Marc encountered a roadblock impeding a real world deal. In response he proposed practical or regulatory solutions; many of which were subsequently adopted.
Below are a few of his groundbreaking papers (lightly annotated). A full list of his publications follows.
Selected Annotated Bibliography
The Definitive Deal Dictionary
OffRoad Capital was the world’s first internet-based investment bank specializing in private placements. An important goal was ensuring their sophisticated investors understood every word in OffRoad’s offerings.
Marc authored the Definitive Deal Dictionary © 1999. Written in Plain English, it features 135 essential definitions for private and public investments. Believed to be the earliest dictionary or glossary for venture capital, private equity, and private placement terms.
Selling your private, middle market company: The Only Guide you’ll ever need to find the ‘Perfect’ Investment Banker
Acquisition Aficionado
This unique step-by-step roadmap provides ten highly customized questions every potential business seller should pose when interviewing an Investment Banker. The most unorthodox? Ask what percentage of their sell-side assignments closed at (or above) indicated valuation ranges, and within the anticipated timeline?
Those who know the answer will have high batting averages. Those who don’t, won’t.
Private Placement Guidelines – A Lawyer’s Letter to a First Time Issuer
Business Lawyer
The objective of Marc’s thinkpiece was creating a first-of-its kind template letter practicing attorneys could “borrow from”, to easily educate their inexperienced private placement clients about securities laws.
An important section is headed “Why am I reading this letter”? The attention-riveting answer is so clients can avoid fines, penalties, civil liabilities, or having to refund their investors’ money if the deal doesn’t turn out well.
The ABA’s Section of Business Law placed Private Placement Guidelines on its website; helping the concept quickly gain widespread acceptance and active use through the legal community.
Real Estate Securities and the Foreign Investor – Some Problems and Proposals
Securities Regulation Law Journal
— AND —
Extraterritorial Application of United States Securities Law – A Matrix Analysis
7 Hastings International and Comp. L. Rev.
Prompted by work he was doing in South America, Marc’s first article about foreign investors noted there was no SEC rule governing offerings solely to foreign investors. He designed a proposed rule and urged the commission to adopt it.
The agency later adopted Regulation S, incorporating the most important elements of Morgenstern’s proposal into a “safe harbor”.
The premise and concept of the second article has been widely cited.
Even if an offering is exempt from SEC registration, the anti-fraud provisions (e.g. monetary liability) may apply based on an amorphous, subjective standard.
Marc created a novel, unprecedented four-by-four “matrix” composed solely of objective variables, and employing a standard nomenclature for analysis. The combination correctly predicted the actual judicial outcome in ~95% of cases.
The Impact of Sarbanes-Oxley on Mid-Cap Issuers
Review of Securities and Commodities Regulation
— AND —
Going Private: A Reasoned Response to Sarbanes-Oxley
SEC Forum on Small Business Capital Formation
Marc was an early and vocal critic of the Sarbanes-Oxley Act, particularly its adverse impact on mid-cap and smaller public issuers. He advocated for rules sharply differentiating reporting and disclosure obligations for issuers based on either their market-cap or revenues. The SEC published both articles on its website.
Additional Publications
M&A and Venture Capital
Case Study: A Deal Made in Heaven
Cleveland State University
Philosophy of Acquisitions
Corporate Counsel’s Quarterly
Crisis Bridge Financings – 2009
The Review of Securities & Commodities Regulation
Dealmakers Unite! Wage War against Deal Waste, Inefficiency, and Friction
Smart Business Magazine
Investor Defaults: How to Protect your Private Equity or Venture Capital Fund
Private Equity Fund Raising 2002, Institute for International Research
Life Support: Crisis Bridge Financing
The Deal
Business, Finance, and Securities
Corporate Governance: Building an IPO and Merger Defense through Board Minutes
39th Annual Institute on Securities Regulation
Legislation Won’t Prevent the Next Madoff: SEC Needs Talent, Technology & Collaboration (Not New Laws)
The Huffington Post
It’s Time to Change Outdated Corporate Models
Selker Leadership
The SEC: What’s Wrong and How to Fix It
Selker Leadership
What’s Worse Than Getting Nickel and Dimed To Death? The Hidden (Non-Monetary) Costs of Sarbanes-Oxley Disclosure
PLI Compliance Counselor
Financial Statement Transparency in MD&A — 2003
The Lawyer’s Brief
Off-Balance Sheet Disclosures in MD&A
The Review of Securities & Commodities Regulation
MD&A 2003: Off-Balance Sheet Rules (Mid-Cap Perspective)
35th Annual PLI Institute on Securities Regulation
Initial Public Offerings — Perspective of Company Counsel
Ohio Securities Bulletin
Proposal Letter on revising SEC Rule 147
American Bar Association Task Force to revise SEC Rule 147 on Intrastate Offerings,
Co-Authors: Carl Schneider and Stanley Keller
Corporations, Partnerships, and Trusts as Purchasers Under Reg. D
Real Estate Securities Journal
The Real Estate Syndicator as a Securities Broker-Dealer
Small Business Counselor
Best Intentions. Sarbanes-Oxley: A Law of Unintended Consequences
Smart Business Magazine
Blocking the Boards: Sarbanes-Oxley Prevents Corporate Boards from Making Decisions Based on Solid Business Principles
Inside Business
Real Estate Joint Venture Interests as Securities — the Implications of Williamson v. Tucker
Washington University Law Quarterly
Going Private: A Reasoned Response to Sarbanes-Oxley
Re-published in Delisting of Companies, Icfai University. Also, PLI Advanced SEC Workshop and SEC 23rd Annual Government-Business Forum on Small Business Capital Formation
Impact of Sarbanes-Oxley on Mid-Cap Issuers
SEC 23rd Annual Government-Business Forum on Small Business Capital Formation, and
Lead Author, Review of Securities & Commodities Regulation
Buyer Beware: Clauses for Protection of Buyer in Purchase of Income-Producing Property Real Estate Outlook
Co-Author, Real Estate Outlook
Partnership Bibliography: 1980-1984
Co-Author, Business Law