Today the Pearl team consisted of two attorneys from the New York firm Davidoff & Perkins and Clive Shusett, the vice president of operations. David Lathrop was already there, picking at a fruit plate.
“Hello, gentlemen,” Will said, shaking hands with the three Pearl representatives. “Hi, David.”
Will leaned in to whisper to David, “I'm going to yank their chain a little today. Just go with me, okay?”
David nodded. “You want to discuss this outside?”
Will shook his head. He didn't want to give David the opportunity to stop him.
Clive interrupted with a tight, perfunctory smile. “Okay, let's get down to business, shall we?” Because Pearl was a much larger company than Jupiter, Pearl's CEO made only a few token appearances during the course of the negotiations. Instead, Clive's responsibility was to ride herd on the transaction and see that it closed promptly and on terms favorable to Pearl. Because Will had negotiated a deal opposite Clive several years ago, he knew that Clive's negotiating style was schizophrenic, which allowed Clive to play bad cop to his own good cop.
In his guise as good cop, Clive was disarmingly chummy, telling stories about his seven-year-old daughter's piano recital, laced with discreet references to the other globe-straddling deal that he was closing for Pearl. Good Cop Clive wanted to welcome you to the big leagues and allow you to bask in the attention that international giant Pearl was bestowing upon the somewhat thinly capitalized niche player that was Jupiter Software.
Bad Cop Clive began to emerge as soon as you began to push for terms that differed from those Pearl was accustomed to ramming down the throats of acquisition targets. First, he greeted the introduction of a new issue with mild surprise, followed by a brief explanation of how customary the particular provision was and how no one had ever asked them to alter it before. If that approach was unsuccessful, Bad Cop Clive escalated to questioning opposing counsel's experience in handling major transactions. Finally, Clive would try going over the attorney's head by asking the client to overrule, expressing doubts as to whether Pearl would proceed with the deal. When he was really pissed off, a submerged Scottish accent surfacedâClive's nastiest and most elemental incarnation. It took a skilled negotiator to get Clive that agitatedâit was akin to reaching level four of Donkey Kong.
Will had seen similar tactics work on midlevel associates who were negotiating their first deal, but he was too experienced to roll over.
Will took a deep breath and began. “Clive, there are a few points I'd like to revisit before we move on.” Around the conference room table, the scribbling of notes, the shuffling of papers, and the surreptitious checking of Black-Berrys stopped. Everyone's attention focused on Will.
Clive's smile froze. “Revisit? You've only been on this transaction for a couple of days.”
“I've been studying the file and some of the points that Ben had made previously.”
“So we're going back to square one just because there's a new lawyer at the table?”
“Why don't you just let me get through the issues?”
“Okay,” Clive said. “Let's hear them.”
“We want the sandbagging clause deleted.”
Carl Sutro, diminutive and fierce, was the lead attorney for Pearl on the deal. “First, I don't like the term
sandbagging
,” Carl interjected. “That clause just ensures that Pearl gets the benefit of the bargain.”
“A provision like that allows you to close the deal, then turn right around and seek damages for breach,” Will shot back. “If you think you've discovered a significant problem during due diligence, then we should have the opportunity to address the issue preclosing.”
The so-called sandbagging clause stated that Pearl could hold Jupiter liable for a breach of its representations and warranties under the merger agreement, even if Pearl gained knowledge of the breach in the course of its due diligence review and failed to speak up.
“Will, you know that issue was settled,” Clive said. “If we have to backtrack at this point, I question whether we'll be able to meet our closing date. But go ahead, you look like you have more.” The two Pearl attorneys took their cue from Clive and settled back in their chairs.
“Second, we don't like the scope of the covenant not to compete that you're holding David to. Under these terms, David would basically have to retire if he doesn't remain with Jupiter. He couldn't be involved in any business related to data security. We think the scope of the noncompete should be limited to businesses directly involved in the development of encryption software. And it should only last for two years.”
David was staring at Will in bewilderment, wondering what game he was playing and why he hadn't been informed of the rules.
Will waited for a reaction, but Clive, furiously taking notes, refused to look up. “Also, I'd like to remind you that you still haven't responded to our information requests. We've certainly been responding to yours.”
Clive made another note, then looked at Will across the conference room table as if he were a dog that had just crapped on the carpet. “Is that all?”
“Yes, that's what I've got today.”
“Soâwait a minuteâare you saying that you might be asking us to revisit other deal points later?”
“No, that's not what I'm saying. What I'm saying is that you aren't going to tell me what issues I can and can't raise.”
“Frankly, I am very surprised by what I'm hearing.”
“These are all points that have been discussed before. Maybe not with me, but they've been discussed. Just because you haven't responded and we've agreed to push forward on other issues doesn't mean we've forgotten about them.”
“Look, Will, we've done many deals similar to this one,” Clive said, gesturing to include his team of attorneys. “Those deals have included the same benefit-of-the-bargain and covenant-not-to-compete provisions that you're balking at. As for the information request, we're publicly traded just like you are. What's the point? Everything you need to know about us is in our 10-Q.”
“Don't tell me we should agree to something just because you've been able to get someone else to agree to it. That's just not very persuasive. As for our information request, take another look. We're not concerned about Pearl's finances. What we want to know is how you plan to integrate Jupiter into your suite of desktop products. Jupiter shareholders are going to become Pearl shareholders. They want to know that this operation is going to be a success when the deal is closed.”
“With requests like this, it may never close. You follow?”
Will pressed on. “The Jupiter board has a fiduciary duty to make sure that this transaction will work over the long haul and provide long-term value to shareholders, not just a good stock price at closing.”
As he was speaking, Will felt a throbbing pain from his wounds, as if Yuri and Nikolai were there in the conference room with him, bullying and cajoling. Will even found himself breaking away from Clive's glare to look at his forearm, half expecting to see a bloodstain blossoming across his starched white shirt.
Now Clive turned to David. Will noticed David tense slightly, as if he had just waded into a cold lake. “David, I can't tell you how many times I've seen deals go south because a lawyer or a CEO let things get out of hand. I suggest you take a few minutes and talk this over with your new attorney. Clearly he doesn't have a handle yet on where we're at in this negotiation. Let's not turn this into a dick-measuring contest because, I'll tell you right now, Pearl is an international company with fifty billion dollars in annual revenues. Ours is bigger.”
“We don't need to step outside. Will speaks for me on this,” David said without a pause.
Will felt like hugging David. The gambit was working.
“Okay. But you know the key terms of this deal have already been approved. If we reopen these issues, I'm going to have to take all of this back to senior management and the board. And they're going to ask me what the fuck is going on. There's always the possibility that they could just say fuck all and move on to the next deal. You know, David, they're already looking forward to having you as part of the Pearl management team.”
The temperature of the room seemed to drop as David, who did not like being threatened, returned Clive's stare. “Tell them that I'm grateful for their confidence in me, but that right now my first responsibility is to the shareholders of Jupiter. I'm sure they can appreciate that.”
“Oh, I know you're just thinkin' of the shareholders,” Clive said, a hint of Scotland creeping into his voice. “I'm sure your shareholders are going to be real happy if Pearl walks away from this deal and leaves you bright boys twisting in the wind.”
“Let's keep this civil, Clive,” Will said. “These are valid concerns that were never fully addressed. I'm sure your board won't be pleased to learn that you represented these points as nailed down when they really weren't.”
Clive stared down at his notes, clearly struggling to contain a Vesuvius of invective. He slowly closed his leather notebook and nodded to his two attorneys, who, after exchanging arched eyebrows, gathered their papers. The three members of the Pearl negotiating team stood, walked around the conference table, and strode out of the room without another word.
When the conference room door swung shut, David spoke in a clenched voice. “Will, you were way out of line just now. Don't ever do something like that again without talking to me first. I know every attorney has their own negotiating style, but that was not the way I do things.”
“It won't happen again.” Will felt ashamed that he had let his personal problems affect his representation.
“I do agree with your points, though, and I think I'm basically glad you did what you did. But I just don't like being blindsided like that. I hope it didn't show.”
“No. You kept your poker face on. If you want to go directly to Clive and tell him that I exceeded my authority, I understand.”
“No, it's okay. I certainly don't like being threatened by a midlevel deal jockey like Clive. Besides, if I cut you off at the knees like that, I might as well negotiate the deal myself. They'll just start looking to me on everything.”
“I understand.”
“You know what? Let's not worry about this too much,” David said. “I've got a feeling Clive has more room to move on these points than he lets on.”
“That was my thinking, too. These aren't really the kinds of issues that he would take back to his board. I expect that he'll be back with a counterproposal within twenty-four hours, forty-eight if he wants to let us dangle a bit.”
Will was consumed by recriminations as he crossed the parking lot at the end of the day, worried that he had compromised the negotiations. But his stunt had bought him a few days, and now he needed to figure out a way to put that time to good use by getting to the bottom of the conspiracy against him.
He had nearly reached his car when he realized that something didn't fit the surroundings. A maroon Lincoln Town Car was parked among the BMWs, Saabs, Audis, and Jettas in the Jupiter parking lotâit didn't match the employee profile. He could see the outline of two figures in the front seat, but couldn't make out their faces.
Will felt a chill despite the sweltering heat, which was rising from the asphalt and penetrating the soles of his shoes. He quickly unlocked the door and started the engine.
Will could not take his eyes off the rearview mirror, nearly colliding with another car as he lurched into traffic. Okay, the Lincoln Town Car was still parked in its spot under a tree. He changed lanes to turn the corner and again searched in the mirror for a view of the Town Car. Still there.
As he waited at a red light, he adjusted his mirror so that he could continue to watch the Town Car. When he found the tree again, there was an empty parking space beneath it. Will jerked around in his seat and saw the Town Car pulling out of the parking lot and taking up a spot in the stream of traffic about twenty-five yards behind him, waiting for the light to change. Two figures warped and shapeshifted behind the glare of the windshield, but became no more recognizable.
Will watched helplessly as the Town Car slowly rolled up alongside his BMW on the right. In the front seat were Nikolai and Yuri. On the passenger side, Yuri smiled crazily and motioned for Will to pull over.
THIRTEEN
Will pretended that he didn't see the Russians and inched forward another few feet, waiting for the light to change.
He heard a tapping and looked over to see that Yuri was standing in the stalled traffic peering through the passenger-side window, still beaming a twisted grin. He opened his jacket to reveal a pistol tucked into his pants. Will unlocked the door, and Yuri slid into the passenger seat.
“I hope you weren't trying to run from us, Will. That would not be wise.”
“Stay the fuck away from me.”
“What's wrong? Tough meeting?”
“Fuck you.”
“You did see the gun, right? You want me to pull it out again? You want me to put the barrel in your mouth? Turn off here,” Yuri said, pointing.
Will pulled into the parking lot of a convenience store, and the Town Car followed.
“You could have just stopped me in the Jupiter parking lot,” Will said.
“It wouldn't look good for us to be seen with you there after a meeting. You're a smart guy, Will, you should know that.”
“I'm new at this.”
“It's okay. We were all beginners once. Now get out of the car. You're coming with us.”