Surprisingly, a California Court of Appeals ignores a bank’s rights under a subordination agreement M&A Stories December 23, 2022 Introduction The seller of a business often carries back part of the purchase price in the form of a promissory note.…
Monthly Archives: December 2022
BUYER OF BUSINESS DID NOT WAIVE ITS RIGHT TO RESOLVE WORKING CAPITAL PURCHASE PRICE ADJUSTMENT DISPUTE BY ARBITRATION
The purchase agreement required the buyer to provide seller access to the buyer’s books and records in a dispute over the closing working capital calculation. The buyer refused access and a Florida federal court ruled that this did not amount…
Posted in problem with purchase price adjustment, purchase price adjustment Tagged with: M&A stories, M&A tips
MANUFACTURER BUYER PROMISED SELLER’S DISTRIBUTOR THAT IT WOULD FIX WARRANTY PROBLEMS – EVEN THOUGH BUYER APA FIX WARRANTY PROMISE CAPPED AT $200K
A New Hampshire federal district court permitted the distributor to pursue a claim against the buyer based upon its assurances made to the distributor before closing. The buyer did not tell the distributor that its responsibility to fix printers sold…
Recent Posts
- BUYER AWARDED $6.2 MILLION IN PUNITIVE DAMAGES FOR DENIED FIRE INSURANCE COVERAGE
- SELLER OF FRANCHISE LOSES DEAL DUE TO UNREASONABLE DEMAND OF A MALL’S LEASING AGENT
- SELLER’S BREACH OF PURCHASE AGREEMENT: FAILURE TO TRANSFER PATIENT RECORDS
- SELLER OF RESTAURANT CHAIN ASSETS NOT LIABLE FOR PRE-CLOSING LEASE
- BUYER OF OCULAR ALLERGY TESTING SYSTEM BATTLES SELLER OVER EARNOUT
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- 351 M&A transactions
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- asset buyer's assumption of seller's liabilities by contract
- asset purchase
- asset purchase agreement
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- asset vs stock deal
- Assignment
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- books and records rep and warranty
- boot
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- breach of contract
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- business cards
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- buyer's covenants
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- copyrights
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- Covenants
- customer and supplier rep
- customer deposits
- customer list
- customer list
- damages
- de facto merger exception
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- deferred closing
- Delaware
- deliberate fraud carveout
- denial of consent must be reasonable
- dental practice sale
- Description of business assets purchased
- determination of purchase price adjustment
- diminuation of value
- direct
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- directors and officers insurance policy
- discharge in bankruptcy
- disclosure schedule
- discounted cash flow or DCF
- dispute resolution procedure
- dispute resolution provision
- distressed business acquisitions
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- due diligence
- Duty to Defend
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- earn outs
- earnout
- earnout as ownership interest in buyer
- EBITDA
- EBITDA
- economic loss doctrine
- employment agreement
- employment agreement
- enforce against nonparty
- enforceability of non-owner noncompete
- entire fairness
- environment representations and warranties
- environmental
- environmental problems
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- equitable contribution
- equitable estoppel
- escrow
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- exclusive remedy
- exclusivity provision
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- executory contracts
- extension by contract in Delaware
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- extra-contractual fraud
- F reorganization
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- fair insider deal
- Family and Medical Leave Act
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- federal securities fraud
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- fee based upon buyer debt assumption
- financial representation and warranty
- financing acquisition issues
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- for cause termination
- force majeure
- foreign income tax
- form over substance
- forum non conveniens doctrine
- forum selection clause
- franchise sale
- fraud
- fraud carveout
- fraud carveout
- fraud in business sale
- fraud in the inducement exception
- fraudulent concealment
- fraudulent inducement
- fraudulent intent
- fraudulent omission
- full disclosure
- full disclosure rep
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- further assurance provision
- further assurance provision
- governmental approval
- governmental approval of transaction
- Guaranty
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- handshake redemption obligation
- hinder, delay or defraud
- hiring seller's employees
- implied assumption of seller contract/liability
- implied covenant of good faith and fair dealing
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- indemnification
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- independent trustee
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- integration clause
- Intellectual Property
- Internal Revenue Code Section 1377 election
- investment banker/business broker
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- judgement for intentional misrepresentation
- key employees of target
- land use issues
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- leases
- leases
- letter of intent
- liens
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- lost profits
- M&A agreement
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- material
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- merger
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- missing attachment to acquisition document
- modification as counteroffer
- multi-employer pension plan
- mutual mistake
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- negligent misrepresentation
- net working capital adjustment
- New York
- no kickback or bribe rep
- no oral modifications of contract
- no pending government investigations or inquiries
- no solicitation of seller employees
- No Undisclosed Liabilities
- non-reliance clause
- nonbinding
- nonbusiness income
- nonbusiness income/sale of subsidiary
- noncompete area
- noncompetition covenant term
- nondischargeable debt in bankruptcy
- nondisclosure agreement
- nondisclosure provision
- nonqualified preferred stock
- nonsolicitation of employees and customers
- nonsolicitation of former customers
- note payment amount adjustment
- notice
- notice provision
- officer duty of care
- officer or director's fiduciary duty to disclose
- offset or setoff provision
- offset right
- One class of stock
- oral contract
- oral copyright agreement
- overly complicated language in contract
- owner liability for company breach of financing deal
- Ownership of Target Law Firm File
- parol evidence rule
- patents
- payroll tax
- percentage of purchase price
- permits and certificates
- personal goodwill
- personal guaranty
- personal guaranty of company debt by selling shareholder
- personal guaranty of lease
- Personal Name
- photo or image
- piercing veil of acquisition subsidiary
- post asset purchase issues
- post closing covenants
- post signing asset valuation
- post-closing adjustments for pre-closing sales and services
- post-closing sales tax
- PPP loan
- PPP loan assumption
- pre-closing management agreement
- pre-closing operating arrangement
- pre-closing sales tax
- preservation of due diligence materials
- prior-material-breach doctrine
- private equity
- Problem with distributors
- Problem with Investment Banker/Broker/Finder Fee
- problem with mandatory arbitration clause
- Problem with products
- problem with prorations
- problem with purchase price adjustment
- problem with seller co-owners
- problem with seller contract
- Problem with seller lessor or landlord
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- problem with seller's owner
- Problem with Union Pensions
- Problem with Vendors and Suppliers
- Problems when business fails after closing
- Problems with business records
- Problems with Competitors
- problems with condition of assets
- problems with creditors of distressed business
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- Problems with Deferred Purchase Price
- Problems with Deposits
- Problems with Description of Assets
- Problems with description of purchase price
- Problems with distressed business seller unexpired tenant leases
- problems with divestitures
- Problems with due diligence
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- Problems with governments
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- problems with pensions
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- problems with receivables
- Problems with sale of auto dealerships
- problems with seller's employees
- problems with seller's lender
- Problems with seller's pre-closing errors & omissions
- Problems with seller's projections
- problems with seller's real property
- problems with subordination rights
- product line exception
- projections
- projections
- promissory estoppel
- promissory note
- prudence
- public information exclusion
- punitive damages
- purchase agreement
- purchase price
- purchase price adjustment
- purchase price reduction
- quality of earnings assessment
- ratifying unassumed contract by post-closing action
- reasonably equivalent value
- receipt of buyer equity or security
- receipt of buyer equity or security
- receivables
- recoupment doctrine
- reformation
- reformation of contract
- reliance
- remote use of trademark out of territory
- representation and warranty about customers
- representations and warranties
- rescission
- rescission
- retaliation
- retention bonus
- revenue and profit projections
- reverse termination or breakup fee
- Revlon doctrine
- Right of publicity
- risk of post closing payments
- royalty
- S corporation
- sale leaseback
- sale of assets of business
- sale of business to ESOP
- sale of product line
- sales order
- sales tax
- sales tax imposed on equity sale of DRE
- sales tax risk
- SBA approval re PPP loan
- scienter
- Section 1377 election
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- seller carried purchase price
- seller knowledge
- seller owner responsibility for underreported sales tax
- seller owners equity interest in buyer
- seller ownership in buyer
- seller rep of no federal employer liability
- seller's age discrimination claims
- seller's covenants
- seller's federal injunctions
- seller's unemployment experience rating
- seller's warranty claims
- seller's workers compensation experience rating
- severance benefits
- sexual harassment
- shareholder approval of deal
- shareholder buyout of partner
- shareholder personal guaranty of target lease
- shareholder release
- sharing transaction tax deduction benefits
- sick time
- signing LOI with revisions by signer
- specific performance
- state and local tax
- state approval of nonprofit hospital
- state franchise/income tax
- statute of frauds
- statute of limitations
- stay bonus
- step-down provision
- stock purchase agreement
- stock sale
- strategic acquisition
- strategic acquisition
- structure of transaction
- subordination
- substance over form
- substantially all assets
- success fee
- successor liability
- sufficiency of assets rep
- supply problems
- survival of covenants
- survival of reps and warranties
- tangible net worth
- target's stock options
- tax
- tax benefit sharing
- tax deferred reorganization
- tax penalties and additions
- Taxation
- termination of M&A agreement
- termination or breakup fee
- third party
- third party beneficiary clause
- time of the essence
- timely objection to indemnification claim
- tolling
- tolling
- tort misrepresentation in M&A
- tortious interference with prospective economic advantage
- trade secret misappropriation
- trade secret misappropriation by former seller employee
- trademark infringement
- trademarks
- transferee liability for taxes IRC Section 6901
- TRO/preliminary injunction before filing for arbitration
- tying fraud to economic loss
- typo or scriverner's error
- UCC search
- Uncategorized
- Uniform Fraudulent Transfer Act or Uniform Voidable Transfer Act
- union fringe benefits
- union liabilities
- unitary business
- unjust enrichment
- unliquidated or disputed claim
- unwanted assets
- vacation time
- valuation
- value added tax or VAT
- waiver of contractual provision
- waiver of jury trial
- waiver of removal to federal court
- waiver provision
- willful breach carveout
- willing buyer or procuring cause
- Withholding Post-closing payments
- working capital adjustment
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