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The M&A Word of the Day® from the Book of Jargon® – Global Mergers & Acquisitions Is Best Efforts
A recent Delaware Chancery Court opinion offers a significant example of how courts may apply complex probability analysis to determine the amount of damages in an earnout dispute. The case arose from Alexion Pharmaceuticals,...more
In 2024, Delaware courts issued multiple instructive decisions on earnout provisions in life sciences M&A transactions. ...more
In Shareholder Representative Services LLC v. Alexion Pharmaceuticals, Inc., the Delaware Court of Chancery addressed an earnout dispute, holding that a buyer violated its contract with the seller by failing to use...more
In two significant recent opinions, the Delaware Chancery Court ruled against the buyers of life sciences companies, holding that they failed to apply commercially reasonable efforts to achieve earnout milestones. In Fortis...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
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 26% of the deals reported in the 2023...more
The use of earnout provisions, which buyers and sellers often use to bridge differing views of value, is on the rise, especially in the private equity and corporate venture capital markets. This White Paper examines how...more
A flexible provision raises questions for buyers and sellers alike. Given the uncertain economic climate of 2023, parties are increasingly turning to earnouts to bridge valuation gaps. As shown by Goodwin’s Private Equity...more
Global Investigations expert Frank Lazzara, CPA, CFF, ABV, CFE, and Economic Damages & Valuations expert David Golbahar, CPA, CFF, CGMA, will present a one-hour* course, which will cover: - An overview of purchase price...more
What You Need to Know in a Minute or Less - An earn-out provision is a common provision in an acquisition agreement that makes a portion of the purchase price contingent on satisfaction of certain post-closing targets or...more
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
The American Bar Association (ABA) 2020 – 2021 Private Target Mergers & Acquisitions Deal Points Study[1] analyzed publicly available acquisition agreements for 123 transactions executed and/or completed in 2020 and the first...more
Williams: Court of Chancery Finds Poison Pill Unenforceable - In February, the Delaware Court of Chancery held that a shareholder rights plan (a "poison pill") adopted by The Williams Companies, Inc. at the onset of the...more
In the recent case of Glidepath Limited v. Beumer Corporation, the Delaware Court of Chancery considered the case of whether a court could apply equitable principles to reform the dates in a purchase contract for measurement...more
Glidepath Limited v. Beumer Corporation, C.A. No. 1220-VCL (Del. Ch. June 4, 2018) - This decision addresses two contracting parties’ divergent expectations relating to whether a delayed closing affected the agreement’s...more
Greenstar IH Rep. LLC v. Tutor Perini Corporation, C.A. No. 12885-VCS (Oct. 31, 2017) - With every contract under Delaware law comes the obligation to not act so as to deprive the counter party of the benefit of its...more