Daniel Avery on Purchase Agreement

Sandbagging Provisions (UPDATED)

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

9/20/2022 / Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sandbagging

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; instead, more M&A...more

9/13/2022 / Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Purchase Agreement

Representations & Warranty Insurance (UPDATED)

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

9/7/2022 / Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties

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

Exclusion of Consequential Damages (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: In 2021, 10% of the merger and acquisition purchase agreements covered by...more

8/9/2022 / Breach of Contract , Buyers , Consequential Damages , Contract Terms , Corporate Sales Transactions , Indemnification Clauses , Purchase Agreement , Sellers

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

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

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

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

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

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

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

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

Daniel Avery

Goulston & Storrs PC

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