Daniel Avery at Goulston & Storrs PC

Indemnity Escrows - June 2021

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

6/3/2021 / Corporate Sales Transactions , Escrow Agreements , Indemnification Clauses , Purchase Agreement , 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

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

Earnout Provisions What’s Market?

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Earnout provisions were included in 27% of the deals reported in the 2019...more

4/21/2021 / Asset Purchase Agreements , Corporate Sales Transactions , Earn-Outs , EBITDA , Marketing , Merger Agreements , Purchase Agreement , Stock Purchase Agreement

Insurance Reduction 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 - April 2021....more

4/16/2021 / Asset Purchase Agreements , Contract Terms , Corporate Sales Transactions , Indemnification Clauses

Exclusion of Consequential Damages

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 - April 2021....more

4/9/2021 / Breach of Contract , Buyers , Consequential Damages , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sellers

Non-Reliance and NOR 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 by Bloomberg Law - March 2021....more

3/30/2021 / Buyers , Carve Out Provisions , Contract Terms , Corporate Sales Transactions , Non-Reliance Clauses , Purchase Agreement , Sandbagging , Sellers

Damage Mitigation Provisions

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

3/23/2021 / Buyers , Common Law Claims , Contract Terms , Damages , Indemnification , Merger Agreements , Purchase Agreement , Sellers , Stock Purchase Agreement

Compliance with Laws Representations

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 by Bloomberg Law....more

3/16/2021 / American Bar Association (ABA) , Buyers , Contract Terms , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers , Stock Purchase Agreement

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

10b-5 and Full Disclosure Representations

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 - February 2021. ...more

2/24/2021 / Disclosure Requirements , Purchase Agreement , Representations and Warranties , Rule 10b-5

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

Waiver of Jury Trials

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 past twelve or so years, inclusion of jury trial waivers in mergers...more

2/5/2021 / Defense Strategies , Jury Trial , Litigation Strategies , Purchase Agreement , Trial Practice Guidance , Trial Preparation , Waivers

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

Indemnification as an Exclusive Remedy

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 by Bloomberg Law....more

1/6/2021 / Carve Out Provisions , Contract Drafting , Contract Terms , Corporate Sales Transactions , Fraud , Indemnification , Purchase Agreement

Purchase Price Adjustments

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

12/16/2020 / Buyers , Contract Drafting , Contract Terms , Corporate Sales Transactions , GAAP , Purchase Price Adjustment , Sellers

Sandbagging Provisions

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

12/10/2020 / Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sandbagging

Stand-Alone Indemnities

Market Trends: What You Need to Know - According to the American Bar Association's eight Private Target Mergers and Acquisitions Deal Point Studies, the use of stand-alone indemnities in reported private company M&A...more

12/1/2020 / Corporate Sales Transactions , Indemnity Agreements , Purchase Agreement , Standalone Authority

Target Counsel Legal Opinions

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...more

11/16/2020 / Contract Negotiations , Corporate Sales Transactions , Due Diligence , Legal Opinion

The ‘Materiality Scrape’ Provision What’s Market?

Market Trends: What You Need to Know - Over the past almost 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

11/12/2020 / Breach of Contract , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Material Adverse Effects , Materiality , Merger Agreements , Representations and Warranties

Trends in M&A Provisions: Disclosure Schedule Updating

Market Trends: What You Need to Know - Over the past several years, an express right, or obligation, of sellers to update disclosure schedules between signing and closing is becoming less common. Originally Published in...more

11/5/2020 / Acquisition Agreements , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Termination Rights

Evolving Private Company M&A Considerations in the COVID-19 Era

The virus that causes COVID-19 has ushered in unprecedented times for our country and our global community. Certainly, the pandemic is impacting the way M&A transactions are looked at, papered, implemented, and even priced....more

10/23/2020 / CARES Act , Change of Ownership , Contract Terms , Coronavirus/COVID-19 , Corporate Sales Transactions , Disclosure Requirements , Infectious Diseases , Letters of Intent , Material Adverse Change Clauses (MACs) , Paycheck Protection Program (PPP) , Purchase Agreement , Representations and Warranties

Daniel Avery

Goulston & Storrs PC

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