There was to be no rest for the wicked that week. As soon as the QuickMart deal closed, Conor began his final preparations for the telephone conference with Hector the next morning. Already a foregone conclusion to use the terms of the buy-sell to rid of the unwanted Durham, Conor only gave the remaining research a cursory glance. Buying out Durham according to the executed document would be expedient and required. There would be no loophole from which Durham could escape if all the procedures of the buy-sell were followed to the letter. Durham would have no choice but to sell at the pre-ordained price and Benito would be able to once again control the company without any bothersome interference by the interloper. In addition, Benito would retain the bank he had coveted only a year earlier. Everything seemed to be in place, but dealing with GrupoCinco was never quite as straightforward as anticipated.
As Henry explained that the buy-sell provisions could be invoked to relieve GrupoCinco of its disgruntled shareholder, Hector seemed pleased but unsatisfied. He responded, "The buy-sell seems like a viable possibility but are there any other mechanisms that GrupoCinco could use to achieve the same result?"
Henry explained that there were other alternatives, but each would result in a long protracted legal battle that could end up poorly for GrupoCinco. If GrupoCinco did not follow the terms and conditions of the buy-sell, not only would GrupoCinco have to pay an unwarranted amount of legal fees, but Durham could eventually succeed in receiving an immeasurable amount in damages if the management of GrupoCinco was found to have acted in bad faith and abused their corporate powers for the sole purpose of squeezing out Durham without paying him some adequate consideration for the shares he now owned. Also, Henry emphasized that everyone involved, including the firm, could be possibly held criminally, and not just civilly, liable if the district attorney was brought in to prosecute any illegitimate actions on the basis of fraud or theft.
With words like fraud and theft being exchanged as a matter of due course, Conor now began to express interest in the conversation. He now was sitting on the edge of his seat listening intently to every detail in order to determine the actual intent of Hector. Just what was Hector thinking? GrupoCinco had a conservative safe way to unravel the previous dealings with Durham.
In fact, Conor now remembered, the buy-sell provisions were incorporated into the deal in order to have a mechanism to resolve this exact scenario. The buy-sell would have been suggested in any other similar transaction, but Conor now remembered revising the wording of the first draft to strengthen GrupoCinco’s position of an Durham buyout was considered in the future. A few more changes were also requested by Hector before Durham ever got a copy of the proposed bank purchase. The terms and conditions of the buy-sell were changed by Hector to ensure Durham was required to sell his shares whenever GrupoCinco wanted, or more realistically, whenever Benito wanted. Why would Hector now be reluctant to invoke the buy-sell to achieve the exact result for which it was included? Hector had to remember its existence since he focused so strongly on the wording just one year before. Conor kept asking himself and looking for clues to decipher what Hector was up to. It could not be anything good for Conor if Hector elects not to use the buy-sell. Then, Conor would have a new GrupoCinco clusterfuck on his desk that could result in a ticking time bomb which could erupt at any time costing Conor his reputation and his entire legal career.
As Hector remained silent on the other end, Henry kept harping on the simple solution of the buy-sell, but it was obvious that his powers of persuasion were not having any effect on the stubborn general counsel. After Henry had spoken his peace and given a full and accurate description of the consequences of any action other than the buy-sell, Hector finally spoke.
"Well, the buy-sell can be used as a last resort. Can you explore all the other possibilities in further detail and prepare a memo with your conclusions that I can present to Benito?"
"Sure," Henry replied. "But as I have said, I think it is a waste of your time and money to consider any other options besides the buy-sell. Everyone else will bring on a long legal battle which you could lose."
Hector responded arrogantly. "The legal fees to prepare the memo are consequential and only Benito can make the ultimate decision on how to proceed. I just want to be able to present him all the possible alternatives, so he can make an informed decision."
Henry, happy to hear the comment about the open checkbook regarding the legal fees, then changed his demeanor and replied, "Hector, we can prepare a memo, but our recommendation will not go unchanged. The buy-sell is the only proper alternative from our standpoint."
"I understand," Hector conceded. "But that is why we are the lawyers and Benito is the businessman."
"OK," Henry explained. "We have something prepared for you shortly. I will get back with you as soon as we have it. Give us a few days to get everything ready."
With that the phones went silent. Conor spoke up first a bit agitated by his new assignment. "Henry, what was that about? What was GrupoCinco trying to accomplish? I don't get it."
"Well, the only thing I can figure is that GrupoCinco is unwilling to pay the amount set forth in the buy-sell. Don't worry, they will come to the right decision eventually. Hector is just covering his ass with Benito, so he can say that he explored every alternative. Can you prepare something quickly?"
"Yes, I think so," Conor replied hesitantly. "Since we just closed the QuickMart deal, I have a little free time, but I still have all the other end-of-year closings to work on."
"That's alright, just throw something together quickly with the research you have already done. But, make sure to include any adverse consequences that may result if the buy-sell provisions are not exercised. I need you to include any possible outcome, criminal and civil, in case GrupoCinco does something stupid and this thing ends up blowing up in our face. I want to make sure that the firm is well insulated from any potential liability. You understand?"
"Yes, but I still can't believe they would consider anything other than the buy-sell."
"Well, that is the way GrupoCinco operates. You just need to make sure the firm does not get dragged into their mess. Once you finish, give me a draft copy before you send it to Hector. I need to go over the memo with a fine tooth comb."
"Will do," Conor finally agreed as he left the Boss's office to work on the dreaded memo. Hopefully, from the contents of the memo, Conor could convince the Mexican nationals to play it safe and thereby make life easier for all involved, most importantly his own. Questionable, and downright illegal, maneuvers by clients must be all part of the game, Conor concluded.
Dealing with the GrupoCinco, business ethics seemed like an oxymoron. But was this not the case throughout history? Conor had studied numerous cases in law school where corporate titans walked a thin line between right and wrong, legitimate and criminal. Depending on the courts and culture of the times, the rich aggressor often succeeded in their quest for greater fortune by relying on technicalities or an outright perverse interpretation of the law.
Conor, during all of his studies of the seemingly counterintuitive decisions never envisioned that he would someday be thrust headfirst into this age old boardroom battle were corporate greed and avarice overcame the more rational and reasonable decision to deal fairly and straightforward with opposing sides. Maybe, Conor was just naïve to think that his moral compass could be held intact while representing business and civic leaders engaged in the never-ending struggle to outdo and outperform the competition. Conor reasoned that maybe, just maybe, that was why litigators and the court system was needed in the first place.
As a corporate attorney, you spent your entire working hours trying to keep combatants from having to resort to litigation as a means to resolve their differences. Hours upon hours are spent fine-tuning the exact wording of a contract to avoid any possible future misunderstanding or misinterpretation of the terms and conditions of a transaction. The whole ultimate purpose of the business lawyer is to examine fully the facts and circumstances of any particular deal and be able to put in black and white all of the intentions and expectations of the opposing parties.
If all is done correctly and neither party intentionally breaches the holy words of the final draft pages guaranteed with a pen stroke of each principal's signature, then the closing should be the ultimate expression of a finite and exact transaction. In exchange for some type of consideration, usually cash and large amounts of the green stuff, the receiving party provides ownership of assets or stock representing assets to the other party willing to pay the purchase price. When all is said and done at closing, no other action by either party need be contemplated. The deal should be commemorated with a plaque, tombstone or some token of remembrance, and then boxed up to gather dust for all eternity.
Ideally, this is the ultimate conclusion to years of hard work and sweat rewarded with a lump sum to be enjoyed at the seller's leisure for the rest of his remaining days. However, this fairytale ending does not always result, no matter how hard any attorney may try to prevent any other outcome. In this less-than-perfect world, Conor needed to come to grips that he had no control over any counsel he provided as a lawyer. It was the client, and only the client, in the end that controlled the final destiny of all of Conor's hard work and effort.
This was a bitter pill to swallow by the young, confident associate. He was not in control of anything. All he could do was advise and wait. He needed more structure to his life. Conor needed more certainty
Conor prepared the memorandum as instructed with the majority of it devoted to each and every bad outcome he could imagine. He included fraud, theft, corporate mismanagement, and the improper use of officer powers to convince Benito, Hector and the others at GrupoCinco that any deviation from the buy-sell would create more problems than it would solve, no matter what the agreed-upon purchase price was.
Once finished, Conor got Henry's approval to send it to the client. Even Henry honestly believed that a laundry list of potential criminal and civil liability would scare the unpredictable clients onto the straight and narrow path. But, Conor was still unsure. Every indication picked up by Conor during the telephone conference indicated otherwise. From the tone of Hector's voice and his apparent previous knowledge of the buy-sell, Conor deduced that GrupoCinco had considered the buy-sell first but did not consider the purchase price to be a reasonable amount. Hector was merely fishing for at an alternative to squeeze Durham without having to pay him anything, it seemed. There is no other reason for the memo except for GrupoCinco to screw Durham. Some of the alternatives that Conor researched had outlined this possibility, but it was readily apparent that there would be drastic consequences if they were implemented.
Already in too deep, Conor had no other choice but to list the solutions and attempt to convince the client otherwise. From Conor's previous experiences with the rogue outfit, he knew that as long as there was a slight chance for success, no matter how brutal, Benito would most likely attempt the impossible before delving out the cash required to make a quiet and reasonable purchase of the shares. With trepidation, Conor punched out the fax number to GrupoCinco and sent a memo to Hector. "Once it disappeared into a digital cloud of binary numbers and was received at the other end, no one could predict what Benito and Hector would do with the information.
They may attempt the transaction without the firm's involvement or they may do nothing. Once again, Benito controlled the situation. All Henry and Conor could do was wait to hear what eventually was decided. With no other responsibility owed to GrupoCinco other than the self explanatory memo, Conor merely billed the client for a large batch of hours and put the memorandum and its repercussions out of his mind in order to concentrate on the hard-fought legitimate transactions that were scheduled to close by the end of the year.
A week went by after the memo had been faxed with no word from Hector, but Conor in the meantime had made considerable progress on his other work. One of the two funeral home deals had closed during the week and the other transactions, as hard as it was to believe, had made considerable headway to conclude before year-end.
Only the family-run oilfield services firm had hit a snag. The untrusting siblings had thrown up roadblocks the entire way arguing every minuscule point in excruciating detail, and now they had come to a complete standstill on the issue of their brother's compensation for running the family company. The siblings had whined the entire negotiation that the brother was overpaid and did not deserve any bonus, as was customary when their father and mother were alive. They were afraid he would drain the company's profits each year by getting board approval of some large unsubstantiated bonus, thereby leaving very little for them.
At one point, they suggested a salary cut with no bonus whatsoever, no matter how well the company was run or how enormously profitable it had been. This request sent the firm's client into a blind rage, which resulted in his threat to resign his position as President so that the no-nothing lazy siblings could run the company into the ground. Realizing their mistake and succumbing to the threat that they may have to earn a living by doing actual work, the siblings dropped the idea of a pay decrease but maintained their position on a salary freeze without bonus. As the client had become accustomed to receiving a substantial annual bonus, the ideal of forgoing the money to enrich his slovenly brothers and sisters for contributing absolutely nothing to the success of the company was absolutely revolting.
With all other terms and conditions settled and agreed upon, the bonus issue locked the opposing sides into a stalemate even though the failure to close before the new year would cause a combined tax loss of millions to the family as a whole. How ridiculous this all was Conor thought. Why cut off your nose to spite your face, just to avenge some childhood rivalries that had never been healed. But, this was the case. The feuding brothers and sisters would rather take a large financial loss than come to terms on some reasonable compromise. Some people just had more money than sense Conor thought as he arbitrated the bitter family dispute.
Finally, on the 30th day of December, the siblings came to a resolution. Faced with the ever present reality of paying the IRS an inordinate some of the family's wealth, the siblings agreed to a formula for the annual Presidential bonus, which was not to exceed one third of the already agreed upon annual salary. Conor's New Year's Eve would be spent cooped up in the firm fishbowl with the four siblings and their attorneys bickering at each other while Conor instructed each of the undeserving children to sign and execute the necessary documentation.
While Conor was relieved to put the year behind them and had been successful in closing all of the damn near impossible transactions, no measure of joy was evident by his face. He looked old and tired as he made his way around the conference table. Gone was the bounce in his step and eagerness to come to work. With nothing but continuous long hours and sleepless scotch filled nights, Conor and become disfigured into a form he was not familiar with. A gut now extended over his increasingly tight suit pants would seem to grow shorter as the weight pushed the waistband outwards and slightly upwards.
Short on time and patience, Conor no longer was able to mix idle banter with his everyday responsibilities. He had become singularly focused on the deals with no idea of the people or happenings that surrounded him. Newspapers stacked up high on the desk unread. Messages for personal matters were left unanswered. Time and space a collided into the large black hole of his office where only work was sucked in and nothing else managed to escape.
He, in essence, had become Greg obsessed in the daily grind with little else to show for it except a paycheck received in a plain white envelope every two weeks. Through all the trials and tribulations, Conor had managed to survive but was merely a shell of the person he was before or wanted to become. All this self-abuse took its toll on the formerly young associate. He accomplished the impossible, but now felt empty and unfulfilled. Even as Conor sat alone in silent behind his desk contemplating the New Year ahead, he could not keep one thought from entering his mind. What had GrupoCinco done in response to his memo?