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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- Ambiguous APA Forum Selection Clause Did Not Waive Right to Remove to Federal Court
- No Seller Indemnification Obligation to Buyer for Recall of Pre-Closing Product
- Buyer’s Indemnification Claim Notice Tolled 1 Year Contractual but Not 3 Year Statutory Limitations Period
- Monthly Financial Statements Not Covered by Financial Representation Covered by Books & Records Representation
- Court Rules That EY Earnout Calculation Was Arbitration Not Expert Determination
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Categories
- "as is where is"
- actual knowledge
- actual notice to known creditors
- agreement to agree is unenforceable
- all cash deal
- allocation of preclosing taxes refunds and credits
- allocation of sales tax from transaction
- alter ego
- alternative dispute resolution
- ambiguous exclusion
- anti-destruction clause
- anti-reliance clause
- approval of franchisor
- approval of investment banking fee
- arbitration vs expert determination
- asbestos claims
- asset buyer's assumption of seller's liabilities by contract
- asset purchase agreement
- asset seller's liabilities
- asset vs stock deal
- Assignment
- assignment of contracts
- assumed liabilities
- assumption of a contract
- assumption of contract by incorporation by reference
- bad faith
- bankruptcy sale
- bitcoin
- blockchain
- boilerplate provisions
- book value adjustment
- books and records rep and warranty
- bootstrapping doctrine
- breach of contract
- breach of representations and warranties
- breach of seller's covenants
- business cards
- business judgment rule
- buyer assumption of seller's contracts
- Buyer beware
- buyer's assumption of seller liabilities in asset acquisition
- buyer's stock as currency
- buying distribution business
- California
- capitalization of cash flow
- cash and cash equivalents
- CERCLA or superfund liability
- certificate of insurance
- choice of law provision
- choice of law provision
- closing
- commercially reasonable efforts
- compliance with all applicable laws
- conditions to closing for buyer's benefit
- consent to assignment
- consent to assignment
- constructive knowledge
- constructive knowledge
- continuity of enterprise exception
- contracts
- contravene strong state public policy
- controlling shareholder fiduciary duty M&A
- corporate overhead
- covenant not to compete
- Covenants
- customer and supplier rep
- customer list
- damages
- de facto merger exception
- deferred closing
- Delaware
- dental practice sale
- Description of business assets purchased
- diminuation of value
- directors and officers insurance policy
- discharge in bankruptcy
- disclosure schedule
- discounted cash flow or DCF
- dispute resolution procedure
- dispute resolution provision
- distressed business acquisitions
- divestitures
- doing deal with company's officer or director
- due diligence
- Duty to negotiate in good faith
- duty to warn
- earn out
- earn out dispute procedure
- earn outs
- earnout as ownership interest in buyer
- EBITDA
- economic loss doctrine
- employment agreement
- employment agreement
- enforce against nonparty
- entire fairness
- environment representations and warranties
- environmental
- environmental remediation
- equitable contribution
- escrow
- excluded liabilities
- excluded or retained liabilites
- exclusive remedy
- exclusivity provision
- executory contracts
- extension by contract in Delaware
- extension of closing
- extra-contractual fraud
- fair insider deal
- Family and Medical Leave Act
- FDIC approval
- federal employer liability
- federal employment discrimination liability
- federal multiemployer pension plan withdrawal liability
- federal securities fraud
- federal wage and hour violations
- fee based upon buyer debt assumption
- financial representation and warranty
- financing acquisition issues
- financing contingency
- for cause termination
- force majeure
- forum non conveniens doctrine
- forum selection clause
- franchise sale
- fraud
- fraud carveout
- fraud in business sale
- fraud in the inducement exception
- fraudulent concealment
- fraudulent inducement
- fraudulent intent
- fraudulent omission
- full disclosure rep
- full disclosure rep
- further assurance provision
- governmental approval of transaction
- hinder, delay or defraud
- hiring seller's employees
- implied covenant of good faith and fair dealing
- implied warranty of merchantability
- indemnification
- indemnification cap
- indemnification for pre-closing product loss
- independent trustee
- inequitable
- insider
- insurance broker duty
- insurance coverage
- insurance requirements
- integration clause
- Intellectual Property
- Internal Revenue Code Section 1377 election
- investment banker/business broker
- joint venture
- key employees of target
- land use issues
- layoff notice law or Warn Act
- leases
- leases
- letter of intent
- liens
- liquidated damages provision
- loss payee
- lost profits
- M&A agreement
- MAE rep
- major shareholders exclusion
- material
- material contracts
- material rep and warranty breach
- Medi-Cal provider agreements
- membership interest purchase agreement
- mere continuation
- mere continuation exception
- merger
- merger agreement
- midco transaction
- minority business participation program
- misleading personal financial statement
- missing attachment to acquisition document
- multi-employer pension plan
- mutual mistake
- negligent misrepresentation
- net working capital adjustment
- no kickback or bribe rep
- no oral modifications of contract
- no pending government investigations or inquiries
- No Undisclosed Liabilities
- non-reliance clause
- nonbinding
- noncompete area
- noncompetition covenant term
- nondisclosure agreement
- nondisclosure provision
- nonsolicitation of employees and customers
- note payment amount adjustment
- notice
- notice provision
- officer or director's fiduciary duty to disclose
- offset or setoff provision
- offset right
- overly complicated language in contract
- owner liability for company breach of financing deal
- percentage of purchase price
- personal goodwill
- personal guaranty
- personal guaranty of company debt by selling shareholder
- personal guaranty of lease
- Personal Name
- piercing veil of acquisition subsidiary
- post asset purchase issues
- post closing covenants
- post signing asset valuation
- preservation of due diligence materials
- prior-material-breach doctrine
- private equity
- product line exception
- projections
- projections
- 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
- reformation
- reformation of contract
- reliance
- representation and warranty about customers
- representations and warranties
- rescission
- rescission
- retaliation
- retention bonus
- revenue and profit projections
- reverse termination or breakup fee
- Right of publicity
- royalty
- sale leaseback
- sale of assets of business
- sale of business to ESOP
- sale of product line
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- 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 buyout of partner
- shareholder release
- sharing transaction tax deduction benefits
- specific performance
- state approval of nonprofit hospital
- statute of limitations
- stay bonus
- step-down provision
- stock purchase agreement
- strategic acquisition
- strategic acquisition
- subordination
- success fee
- successor liability
- survival of covenants
- survival of reps and warranties
- target's stock options
- tax benefit sharing
- Taxation
- termination of M&A agreement
- termination or breakup fee
- third party beneficiary clause
- 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
- transferee liability for taxes IRC Section 6901
- transitory services contracts
- tying fraud to economic loss
- UCC search
- Uncategorized
- Uniform Fraudulent Transfer Act or Uniform Voidable Transfer Act
- union fringe benefits
- union liabilities
- unjust enrichment
- valuation
- value added tax or VAT
- waiver of contractual provision
- waiver of removal to federal court
- waiver provision
- willful breach carveout
- Withholding Post-closing payments
- working capital adjustment
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