August 12, 2020 Introduction Sometimes the parties to an M&A transaction want to leave certain agreed terms out the written agreements to avoid adverse tax consequences. These additional terms are made in the form of a handshake: an oral side…
Blog Archives
Business Seller Fights Through a Jury Trial and an Appeal to Enforce Oral Side Deal
Posted in 351 M&A transactions, boot, handshake redemption obligation, integration clause, nonqualified preferred stock, parol evidence rule Tagged with: M&A stories, M&A tips
Buyer of Target Can Sue Sellers for $9 Million of Pre and Post Sales Tax Liabilities
July 15, 2020 Introduction It can be challenging for a national footprint business to navigate the 11,000 sales tax jurisdictions in the United States. Thus, buying a large business presents state and local sales tax risk. The deal This deal…
Posted in fraud carveout, post-closing sales tax, pre-closing sales tax, sales tax risk Tagged with: M&A stories, M&A tips
US Court Enforces SPA’s Purchase Price Adjustment Dispute Forum Selection Clause
May 24, 2020 Introduction Many business acquisitions have post-closing purchase price adjustments based upon the financial position of the target company at closing. The parties usually provide for a dispute resolution procedure for resolving disagreements over the final numbers, and…
Delaware Court Permits Business Buyer’s APA Breach and Fraud Claims Against Seller
April 24, 2020 Introduction Buying a business is risky. And buyers all too often find out after the closing that the business was not as represented in the data room, meetings, emails, messages, phone calls, or in seller’s acquisition agreement…
Posted in damages, exclusive remedy, fraud carveout, indemnification cap Tagged with: fraud in the inducement, M&A stories, M&A tips
Ambiguous APA Forum Selection Clause Did Not Waive Right to Remove to Federal Court
January 10, 2020 Introduction Acquisition documents often have a forum selection clause. And like any provision ambiguity can invite a dispute if litigation breaks out after the closing. The deal The seller was a manufacturing company located in Butler County,…
Court Greenlights Business Seller’s Fraud Lawsuit Over Earnout Dispute
Introduction Disappointing earnout deals are common. The deal This deal involved the stock acquisition of the target, a legal analytics company by a competitor. The price was $9 million cash plus a $3 million earnout potential. The earnout was based…
Court Holds That $12 Million Merger Termination Fee Payment Not Exclusive Remedy
Introduction It is common in M&A deals for the seller to have the right to terminate an agreement by paying a significant termination fee; especially as part of a fiduciary out structure. The deal This case involves players in the…
Forum Selection Clause Enforced in Buyer Note Given in Acquisition of Company
Introduction A buyer of a company wants the purchase agreement to specify that a post-closing dispute will be litigated in a state or country convenient to it. Often both sides can agree that the most convenient forum is where the…
Posted in forum selection clause Tagged with: different forum selection clauses in purchase agreement and note, M&A stories
Fraud Carve-Out in APA’s Exclusive Remedy Provision Saves Buyer’s Employee Non-Solicitation Claim
Introduction Most acquisition agreements provide that the agreement’s indemnification provisions are the exclusive remedy for a contractual breach. However, it is also common to exclude fraud claims from this excusive remedy provision. The deal This deal involved the acquisition of…
9th Circuit Holds APA’s Delaware Forum Selection Clause Contravened Strong Idaho Public Policy
Introduction Many buyers and sellers in M&A transactions like Delaware courts to handle their disputes because of the reputation for competence. Thus, it is common to see a Delaware forum selection clause in M&A agreements. Some parties to a deal…
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- 351 M&A transactions
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- fee based upon buyer debt assumption
- financial representation and warranty
- financing acquisition issues
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- for cause termination
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- form over substance
- forum non conveniens doctrine
- forum selection clause
- franchise sale
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- fraudulent concealment
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- governmental approval
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- hiring seller's employees
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- independent trustee
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- land use issues
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- leases
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- M&A agreement
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- material
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- merger
- merger agreement
- midco transaction
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- misappropriation of likeness
- misleading personal financial statement
- missing attachment to acquisition document
- modification as counteroffer
- multi-employer pension plan
- mutual mistake
- mutual mistake
- 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/sale of subsidiary
- noncompete area
- noncompetition covenant term
- nondisclosure agreement
- nondisclosure provision
- nonqualified preferred stock
- 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
- One class of stock
- oral contract
- overly complicated language in contract
- owner liability for company breach of financing deal
- parol evidence rule
- payroll tax
- percentage of purchase price
- personal goodwill
- personal guaranty
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- 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 sales tax
- PPP loan
- pre-closing management agreement
- pre-closing sales tax
- preservation of due diligence materials
- prior-material-breach doctrine
- private equity
- 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
- 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
- Right of publicity
- 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 risk
- SBA approval re PPP loan
- Section 1377 election
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- seller carried purchase price
- 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 buyout of partner
- shareholder release
- sharing transaction tax deduction benefits
- sick time
- specific performance
- 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
- survival of covenants
- survival of reps and warranties
- target's stock options
- 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
- 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
- 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 removal to federal court
- waiver provision
- willful breach carveout
- Withholding Post-closing payments
- working capital adjustment
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