Book
Articles
Additional Publications
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 Key Takeaways at the end of every chapter.
Marc’s philosophy (based on selling encyclopedias door-to-door, following the Grateful Dead, and 100’s of transactions) fuse to create a unique negotiating style premised on flexible jam band philosophy, engaged listening to respond (not rebut), and persuading (not bludgeoning). What he calls a Dealjammer©.
Steve McLaughlin (3-time Fintech Dealmaker of the Year) observed “Every business buyer, seller, and aspiring dealmaker should read this instant classic. I loved it”.
ARTICLES
For 40+ years, Marc Morgenstern’s provocative articles about M&A, venture capital, startups, securities, 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). Additional select list of his publications follows.
SELECT ANNOTATED BIBLIOGRAPHY OF MARC’S ARTICLES
“The Definitive Deal Dictionary” © Copyright 1999.
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. Nothing suitable was publicly available.
At their request, Marc authored the Definitive Deal Dictionary. 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 prospective Investment Bankers. 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
Marc’s objective was creating a first-of-its kind template letter practicing attorneys could “borrow from”, to easily educate their clients about securities laws compliance obligations when raising money privately.
An important section is “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.
In Marc’s first article about foreign investors he noted there was no SEC rule governing offerings solely to foreign investors; only a handful of partially relevant SEC “no-action letters”. He urged the commission to adopt a rule all issuers could rely on; which he designed and presented.
Six years later, the agency adopted SEC Regulation S incorporating the most important elements of Morgenstern’s proposal. Compliance would exempt an offering to foreign investors from registration.
The premise of the second article has been widely cited with approval in professional and academic circles.
Even if an offering to foreign investors is exempt from SEC registration, the anti-fraud provisions (like monetary liability under infamous Rule 10b-5) may apply if United States courts have “subject matter jurisdiction”; an amorphous, subjective standard.
Marc concluded that only a few objective variables were genuinely outcome determinative, i.e. the amount of United States conduct and effect, combined with the nationality and residence of the litigants.
Based on that premises, he created a four-by-four matrix composed solely of those variables. 16 combinations were identified using a standard nomenclature. The matrix successfully predicted the actual judicial outcome in ~95% of cases.
Using a matrix and standard analytical nomenclature and terminology for legal analysis was unprecedented, as was a complex, multi-variable test that was primarily objective rather than subjective.
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 (SOX), particularly its adverse impact on mid-cap and smaller public issuers. Marc advocated for rules sharply differentiating reporting and disclosure obligations of different sized issuers based on either their market-cap and/or revenues. The SEC published both articles on the SEC’s website.
After those articles, the SEC formed an Advisory Panel on Small Public Companies to address issues raised by Marc and others. Many of his insights were reflected in the Panel’s 2006 report, as well as the SEC’s final rules and regulations.
ADDITIONAL PUBLICATIONS
M&A and Venture Capital
Case Study: A Deal Made in Heaven. Derived from The Soul of the Deal, Chapter 2 Cleveland State University
Philosophy of Acquisitions Corporate Counsel’s Quarterly
Bridge Financing In A Crisis Often Pits Parties Against Each Other Bowne Review for Dealmakers
Crisis Bridge Financings – 2009 The Review of Securities & Commodities Regulation
Life Support: Crisis Bridge Financing The Deal
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
Business, Finance, and Securities
Legislation Won’t Prevent the Next Madoff: SEC Needs Talent, Technology & Collaboration (Not New Laws)
The Huffington Post
Corporate Governance: Building an IPO and Merger Defense through Board Minutes
39th Annual Institute on Securities Regulation
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
Group Therapy: SEC Rules Confound Partnerships Between PE Firms and Hedge Funds The Deal
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
The Real Estate Syndicator as a Securities Broker-Dealer Real Estate Securities Journal
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 (1991)
Corporations, Partnerships, and Trusts as Purchasers Under Reg. D Real Estate Securities Journal
Initial Public Offerings — Perspective of Company Counsel Ohio Securities Bulletin
The Real Estate Syndicator as a Securities Broker-Dealer Small Business Counselor
Sarbanes-Oxley’s Subtle Disclosure Costs Insights: Corporate & Securities Law Advisor
Real Estate Joint Venture Interests as Securities – the Implications of Williamson v. Tucker Wash U. Law Q.
Going Private: A Reasoned Response to Sarbanes-Oxley Re-published as a chapter in Delisting of Companies, Icfai University.
Also, PLI Advanced SEC Workshop and SEC 23rd Annual Government-Business Forum on Small Business Capital Formation
Best Intentions. Sarbanes-Oxley: A Law of Unintended Consequences Smart Business Magazine
Sarbanes-Oxley Prevents Corporate Boards from Making Decisions Based on Solid Business Principles
Inside Business
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
Partnership Bibliography: 1980-1984 Co-Author, Business Law