Daniel Avery

Daniel Avery

Goulston & Storrs PC

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Indemnity Escrows - August 2022

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Indemnity escrows are consistently seen in about two-thirds or more of...more

8/30/2022  /  Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Escrow Agreements , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties

Indemnity Baskets (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Over the time period covered by the nine studies (2005-2021), the level of...more

8/23/2022  /  Acquisition Agreements , American Bar Association (ABA) , Basket Transactions , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement , Representations and Warranties

Separate Escrows for Purchase Price Adjustments (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: The use of separate escrows for purchase price adjustments has been...more

8/16/2022  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Escrow Agreements , Merger Agreements , Purchase Agreement , Purchase Price Adjustment

Non-Reliance & NOR Provisions

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Express non-reliance provisions are increasingly common in merger and...more

8/2/2022  /  Acquisition Agreements , Contract Drafting , Contract Terms , Corporate Sales Transactions , Merger Agreements , Non-Reliance Clauses , Purchase Agreement

Damage Mitigation Provisions - (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Inclusion of damage mitigation provisions in merger and acquisition...more

7/27/2022  /  Acquisition Agreements , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement

Waiver of Jury Trials (UPDATED)

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies, over the past twelve or so years, inclusion of jury trial waivers in...more

7/19/2022  /  Acquisition Agreements , Contract Drafting , Jury Trial , Jury Waivers , Merger Agreements , Right to a Jury

Indemnification as an Exclusive Remedy (UPDATED)

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Over the time period covered by the nine ABA studies (2005-2021), the...more

7/12/2022  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Exclusivity Clauses , Fraud , Indemnification , Merger Agreements , Purchase Agreement , Remedies

Financial Statement Reps (UPDATED)

Market Trends: What You Need to Know - According to the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies, financial statement representations are universally required from sellers in...more

7/6/2022  /  Acquisition Agreements , Corporate Sales Transactions , Financial Statements , GAAP , Merger Agreements , Representations and Warranties

Purchase Price Adjustments (UPDATED)

Market Trends: What You Need to Know - Based on the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: - Purchase price adjustments continue to be commonplace in M&A agreements. In...more

7/1/2022  /  Acquisition Agreements , Buyers , Corporate Sales Transactions , Merger Agreements , Purchase Price , Purchase Price Adjustment , Sellers

Target Counsel Legal Opinions (UPDATED)

Market Trends: What You Need to Know - One of the most pronounced practice-related trends in private company merger and acquisition transactions is the near-disappearance of target legal opinions as a closing deliverable....more

6/21/2022  /  Acquisition Agreements , Buyers , Buying a Business , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers , Selling a Business

The 'Materiality Scrape'

Market Trends: What You Need to Know - Over the past 15+ years covered by the ABA studies, materiality scrapes have morphed from being a somewhat uncommon provision, seen in about 14% of transactions in 2005, to...more

6/14/2022  /  Acquisition Agreements , Buying a Business , Contract Drafting , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties , Selling a Business

Indemnity Caps (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies. Over the nine ABA studies (2005-2021), indemnity caps have declined as a...more

6/7/2022  /  Acquisition Agreements , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement , Representations and Warranties

After-Tax Indemnity Limitations (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies... Originally Published in Bloomberg Law - May 2022. ...more

5/31/2022  /  Acquisition Agreements , Asset Purchase Agreements , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Stock Purchase Agreement

Earnout Provisions

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: - Earnout provisions were included in 20% of the deals reported in the...more

5/24/2022  /  Acquisition Agreements , Earn-Outs , EBITDA , Merger Agreements , Setoff Rights

Compliance with Laws Representations (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: - Compliance with laws representations are almost always, barring highly...more

5/10/2022  /  Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Merger Agreements

Alternative Dispute Resolution Provisions (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: Overall, alternative dispute resolution provisions are becoming less...more

5/5/2022  /  Acquisition Agreements , Arbitration , Arbitration Agreements , Binding Arbitration , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Mediation , Merger Agreements , Purchase Agreement

Representations & Warranty Insurance

Market Trends: What You Need to Know - RWI is an increasingly important feature of private company M&A transactions. Every other year since 2005 the ABA has released its Private Target Mergers and Acquisitions Deal Point...more

6/9/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Representations and Warranties

Indemnity Baskets

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law....more

6/1/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties

Indemnity Caps

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Over the eight ABA studies (2005-2019), indemnity caps have declined as a...more

5/14/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Representations and Warranties

After-Tax Indemnity Limitations

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Since 2011, the use of after-tax indemnity limitations has steadily decreased,...more

5/6/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Liability , Merger Agreements , Purchase Agreement , Tax Benefits

Separate Escrows for Purchase Price Adjustments

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: - The use of separate escrows for purchase price adjustments has been increasing on...more

4/29/2021  /  Acquisition Agreements , Buyers , Contract Formation , Contract Terms , Corporate Sales Transactions , Escrow Accounts , Merger Agreements , Purchase Price Adjustment , Sellers

Alternative Dispute Resolution Provisions

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally published in Bloomberg Law....more

3/3/2021  /  Acquisition Agreements , Arbitration , Arbitration Agreements , Business Disputes , Contract Disputes , Mediation , Merger Agreements , Purchase Agreement

No Undisclosed Liabilities Representations

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law - February 2021....more

2/17/2021  /  Acquisition Agreements , American Bar Association (ABA) , Balance Sheets , Buyers , Carve Out Provisions , Contract Drafting , Contract Terms , Corporate Sales Transactions , GAAP , Liability , Merger Agreements , Purchase Agreement , Sellers

Use of Knowledge Qualifiers for Representations and Warranties

Introduction - In merger and acquisition (M&A) transactions, the definitive purchase agreement typically contains representations and warranties made by the seller with respect to the target company. The scope and detail of...more

2/15/2021  /  Acquisition Agreements , Actual or Constructive Knowledge , Contract Terms , Corporate Sales Transactions , Merger Agreements , Representations and Warranties

Financial Statement Reps

Market Trends: What You Need to Know - According to the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies, financial statement representations are universally required from sellers in...more

1/12/2021  /  Acquisition Agreements , Asset Purchaser , Books & Records , Corporate Governance , Corporate Sales Transactions , Financial Statements , GAAP , Merger Agreements , Purchase Agreement
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