It seems like every time we pick up the newspaper or Publisher's Weekly or Educational Marketer, we read about another takeover or merger between publishers. This phenomenon has been going on at least the last 10 years, and there appears to be no prospect for abatement.

Mergers and takeovers result in a tremendous shake-down of both companies from top to bottom. Suddenly there are two of everything: top management, middle management, developmental and sponsoring editors, production personnel. The remaining merged company has to evaluate everyone and decide who's staying and who's going. This can take a good six months and meanwhile your work may be in limbo.

Not only does the remaining company have two of everything in the way of personnel, they now may have two or more texts, including yours, that compete for the same market. The companies contemplating a merger conduct a comprehensive evaluation of titles, with the goal of complementing one another's strengths and weaknesses. Nonetheless, it is inevitable that large companies merging will have substantial overlap. While it is possible that the remaining company will try to market both competing texts, it is much more likely they will select one. If they do continue with two competing texts (or more) you need to be concerned with whether the publisher will commit sufficient resources to your text.

Of course, the easiest way to deal with this concern would be to include a provision in your contract that prohibits assignment of the contract by either party without the written consent of the other.

The problem with this solution is publishers are not willing to agree to a contractual provision that allows their assets to be dissipated at the very moment they're set to cash in. In other words, your long-term agreement with the publisher whereby you assign all rights, together with similar agreements of other authors signed to long-term agreements with the publisher, are the assets that are being sold for hundreds of millions or even billions of dollars. If the publisher enters agreements with its authors that allow the authors to, in effect, veto any sale, what do they have left to sell? On the other hand, to publishers this could be the ultimate "poison pill."

We'll assume that perhaps 5 to 10 percent of all textbook authors, those with a lot of clout and perseverance may be able to negotiate such a provision in your contract. Now let's talk about what the remaining 95 percent of the authors should do.

Always negotiate a publications clause. While every author/publisher agreement states the exact date by which the author is to submit a complete manuscript, the publication clause is almost always less precise. A good publication clause in a standard contract might say "the publisher shall publish the manuscript promptly after the publisher accepts the final manuscript." Such a clause places an obligation on the publisher to publish within a reasonable time after the publisher's discretionary decision determining whether the manuscript is acceptable.

However, most of authors, upon reading their agreement, will find a more nebulous statement to the effect that "the publisher may publish the manuscript at a time and in a manner that the publisher, in its sole discretion, considers appropriate." Legally speaking, that's something short of a firm commitment. Accordingly, my recommendation is:

Every contract should have a definitive period of time within which the publisher shall -- not "may" -- publish.

This is one of those "what's good for the goose is good for the gander" clauses. As an absolute minimum, if you are giving up years of your life to write a book granting all rights to your publisher, you must require the publisher to commit to a deadline for publication. Three clauses are needed:

• A modified acceptance clause.
• A modified publication clause.
• A reversion clause

Without getting into too much detail, the acceptance clause should provide that the publisher will accept or reject the manuscript in writing within a definitive period (e.g. 90 days) of time of submission. The publication clause must provide for publication within a definitive number of months of acceptance. The number of months will vary according to the length and complexity of the manuscript, but should not exceed 18 months. A reversion clause provides that in the event the publisher does not either accept the manuscript or publish within the specified time, the author may demand immediate reversion of all rights.

This is only fair. if the publisher is not interested in publishing your work, the contract needs to provide for prompt return of rights so the author has an opportunity to seek another publisher.

These provisions are not difficult to obtain through proper negotiations. You must make it clear what you want, and clear that you will not enter a contract without these basic provisions.

If you don't have merger-protection clauses. "We didn't know to negotiate these provisions, and our publisher is being bought out. What do we do now?

Be prepared for some delays as things shake out at your newly constituted publisher. As mentioned above, practically every employee is going to be on pins and needles, and rumors will be swirling. This would be an excellent time to keep in close contact with your editor and any other friends you've made along the way at your publishing house. They may need as much moral support as you. They will also be a good source of educated rumors as to what is going on and when decisions may be made as to your work.

If any important representations are made to you during these conversations, be sure to pen a note to the source documenting the representation in some non-threatening way. Keep a copy for your file.

Since the destiny of your work may turn on the existence of competing titles now owned by the surviving publishing company, it would be a good idea to obtain the merging company's catalog. You may be able to obtain this information from the Internet. Once you determine what competing titles exist, go to a college book store and review the competing text. consider purchasing a copy or spending enough time with a copy to perform a critical analysis of the strengths and weaknesses of your competitor. In this way, you will be well informed and better able to influence the successor corporation's decision on which title remains and which goes.

On the other hand, you may find sufficient distinguishing features to convince your publisher that there is room in the marketplace for both titles. It could be your publisher will garner a larger market share by publishing the two titles in alternate years aimed at somewhat different markets.

It will be your job to diplomatically but firmly keep the surviving publisher's feet to the fire. In a merger, chaos reigns, and the old "squeaky wheel gets the oil" adage could not be truer.

At some point, if it appears your publisher is not going to publish your work, you have to begin negotiations to obtain reversion of rights. Your contract will likely read that if the work is not published, the author is required to refund all amounts paid by the publisher before rights will be reverted. Since you spent those advances as soon as you got them, and used the grant to purchase the new word processor, this presents a "Catch 22." (In your next contract, negotiate for a provision that allows repayment of advances from "first proceeds" generated by publication of the book by a new publisher. In this way you can obtain reversion of rights, and have the book working for you to repay advances to your first publisher.)

Ultimately, you should be able to convince your publisher that it is in their interest as well as yours to release the Work to you either with a first proceeds clause for repayment of advances, or with a negotiated buyout for a reduced sum.

Why is this in the publisher's interest? From the publisher's perspective, it mitigates damages the publisher might otherwise be liable for. That is, if the author has a cause of action against the publisher for breach of the agreement to publish, the author has a duty to "mitigate" his or her damages. The only way the author can do this is to seek publication of the work by another publisher. This, of course, requires reversion of rights.

Also, the publisher is subject to criticism if not liability for bottling up a competing work it does not intend to publish. In short, the publisher should revert the rights to the author so long as the author is willing to satisfy his/her contractual obligation to repay advances, or a portion thereof, through first proceeds.

Lastly, seek professional help. With the future of your creation at risk, this is not a time to be penny wise and pound foolish.