Introduction The language used in an M&A deal matters. In a post-closing dispute, the lawyers and judges look to the language of the M&A document to resolve the dispute. And sometimes, the language will work against what a party thought.…
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Court Finds No De Facto Merger in Purchase of Bankrupt’s Intangibles-IP
Introduction Buyers of manufacturing businesses must always assess product liability risks. Even when buying the assets of the business as opposed to the stock (or LLC membership interests). The deal Here, the manufacturing company in this case made lathes. It…
Posted in asset purchase agreement, de facto merger exception, successor liability Tagged with: common shareholders, de facto merger, product line exception
Court Says That Buyer of Business Not Likely to Win Trade Secret Suit
Introduction A buyer of a business sued the seller’s owner to stop him from competing against the owner’s old business. The deal This case involved the sale of a seafood distribution business. The seller was a San Francisco based organic…
Posted in asset purchase agreement, trade secret misappropriation by former seller employee Tagged with: customer list, suppliers, trade secret
Franchise Buyer’s Fraud Claim Bars Seller’s Summary Collection of Note
Introduction It can be easy for a creditor to obtain a judgment against a debtor that has defaulted on payment of a promissory note. Essentially all the creditor must do is produce the signed note and prove nonpayment. But not…
Franchisee’s Fight with Franchisor Costs It a Sale of its Franchise
Introduction This is a story of a broken deal: a sale of a restaurant franchise that did not happen because of a dispute with the franchisor. The deal The case here involved a franchise for seven Tim Hortons restaurants located…
Bankruptcy Court Permits 363(f) Sale of Business Free of Pension Claim
Introduction A pension plan unsuccessfully tried to stop a company from selling a business to a buyer in a 363(f) (3) sale free and clear of the seller’s pension fund liability. The deal The seller was engaged in environmental and…
Posted in asset purchase agreement, bankruptcy sale, distressed business acquisitions, federal multiemployer pension plan withdrawal liability, Section 363 sale, successor liability Tagged with: 363(f) sale, alter ego, contingent liability, multiemployer pension plan withdrawal liability, successor liability, transferee liability
Owner Sells Company’s Fitness Club Assets; Fights Personal Trainer Claims
Introduction Selling your company can be very stressful for employees and contractors not picked up by the buyer. Especially those that have depended upon cash flow from you company for a long time. This creates a risk you may be…
Posted in asset purchase agreement, assignment of contracts, contracts, due diligence Tagged with: assignment of contracts; due diligence of contracts
Seller Argues That Indemnification Cap Applies to Excluded Liabilities
Introduction An advantage of an asset sale is that a buyer can pick and choose which seller liabilities the buyer wants to be responsible for under the asset purchase agreement; often referred to as the assumed liabilities. However, the buyer…
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