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This article is part of Fenwick's "Buy-Side M&A Playbook" series, published as part of the Silicon Valley Defense Group's Industry Collaboration Toolkit....more
Two recent Delaware Superior Court opinions are essential reading for M&A practitioners drafting language with respect to how disputes related to purchase price adjustments, earnouts, and other accounting-related...more
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 something near-ubiquitous in M&A purchase...more
In M&A transactions, unknown target liabilities are typically addressed in different ways throughout the M&A purchase agreement. A no undisclosed liabilities representation is one of the principal representations in an M&A...more
Representation and warranty insurance (“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
In M&A purchase agreements, the parties may stipulate certain non-judicial means for dealing with claims under the agreement (e.g., arbitration or mediation). These ADR provisions will govern how disputes between the parties...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 M&A transactions, the definitive purchase agreement, whether asset purchase agreement, stock purchase agreement, or merger agreement, typically contains representations and warranties and related indemnification covenants....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, warranties, and...more
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 these...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
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
The Private Target Mergers & Acquisitions Deal Points Study (“the Study”) is published on a bi-annual basis by the Market Trends Subcommittee of the ABA Business Law Section’s M&A Committee, which I am happy to serve on. The...more
In mergers and acquisitions, both the seller and the buyer may need to include employment-related provisions in the M&A documentation. We have gathered together the most frequent and significant employment provisions for...more
Non-competition agreements and similar restrictive covenants form a bundle of rights and obligations that are hotly negotiated between buyers and sellers in every M&A transaction. These covenants often represent tradeoffs...more
Earnouts, which provide sellers payouts if certain post-closing milestones are reached, have become increasingly popular in recent M&A transactions given today’s uncertain regulatory and financial climate. Inflation, supply...more
Market Trends: What You Need to Know - According to the American Bar Association's nine Private Target Mergers and Acquisitions Deal Points Studies, the use of stand-alone indemnities in reported private company M&A...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 - 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
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
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 Point Studies: The use of separate escrows for purchase price adjustments has been...more
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