A “sandbagging” provision, sometimes referred to as a “pro-sandbagging” provision,) in an M&A agreement such as an—asset purchase agreement, stock purchase agreement, or merger agreement—states that a buyer's remedies against...more
By including a jury trial waiver in an M&A purchase agreement, the parties agree to waive their rights to a jury trial in any dispute under the M&A agreement. Jury trial waivers may also extend to disputes under all of the...more
Purchase price adjustment provisions are designed to reflect changes in the target's financial condition that occur prior to the closing of the transaction. For example, if on January 1, a transaction is valued, or priced, at...more
In M&A transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains representations, warranties, and covenants, along with related...more
In merger and acquisition (M&A) transactions, the definitive purchase agreement whether asset purchase agreement, stock purchase agreement, or merger agreement typically contains representations and warranties made by the...more
Ambiguous drafting of earnout provisions in M&A agreements is a perennial source of post-closing disputes. What may have seemed clear to parties in the heat of negotiations can often become less so as time passes,...more
We had a great time at the ABA Business Law Section M&A Committee Meeting in beautiful Laguna Beach. It was a nice way to wrap up January with some warm weather and interesting discussions on new developments and predictions...more
Image a home buyer finally finds their dream house. There’s just one problem. During their home inspection, they discover the foundation is cracked. But they buy the house anyway, fully aware of the issues with the...more
We’ve all bought something that didn’t live up to our expectations. When it’s something small, we may grumble about it for a moment or two, and move on with our lives. When you’re buying a business, your financial life may...more
Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: “Knowledge” is now almost always defined in private company...more
Market Trends: What You Need to Know - “Sandbagging” concepts are often the subject of intense negotiation in M&A transactions. Inclusion of pro-sandbagging clauses within M&A purchase agreements has been on the decline,...more
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
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
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
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
In an opinion of significance to M&A Practitioners, the Delaware Court of Chancery recently made it clear that Delaware law allows a buyer in an acquisition to “sandbag” a seller if the acquisition agreement allows for...more
On March 9, 2022, the Delaware Court of Chancery issued a post-trial decision in Arwood v. AW Site Services, LLC, subsequently amended on March 24, 2022. The plaintiff, John Arwood, had spent decades building a waste...more
Recent Delaware cases appear to make two things clear. First, it remains extremely unlikely that a court will find an event or occurrence to fall within the general provisions of a Material Adverse Effect condition and as a...more
For various reasons, a medical group may decide that it is time to sell their practice. This could be due to reduced reimbursements, increased operational complexities or the desire to “cash out” and retire....more
In late November of last year, the Court of Chancery in Delaware handed down a decision in a case called AB Stable VIII LLC v. MAPS Hotels and Resorts One, LLC ...more
In Morris v. Spectra Energy Partners (DE) GP, LP,1 the Delaware Supreme Court clarified the test for determining when former equityholders have standing to pursue post-merger direct claims for a controller’s alleged failure...more
From time to time, private equity sponsors will exit a portfolio company investment by selling the portfolio company to buyers led by another fund managed by the same sponsor. Because the sponsor is essentially on both sides...more
In a late night, 242-page decision, the Delaware Court of Chancery ruled that the buyer in a purchase and sale agreement was relieved of its obligation to close and could terminate the agreement as a result of the changes...more
Letters of intent, or LOIs, serve an important purpose in corporate deals and M&A, and their use is widespread. Equally widespread is litigation concerning their enforceability. Unless commercial parties are careful, they may...more