Introduction A buyer of a closely held business often has limited recourse against a seller if the deal turns out bad. Even if fraud is involved, the buyer must run the gauntlet of indemnification cap, survival period, exclusive remedy, non-reliance,…
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Bootstrapping Doctrine No Bar to Business Buyer’s Fraud Claim
Posted in bootstrapping doctrine, exclusive remedy, fraud carveout, fraud in business sale, non-reliance clause Tagged with: bootstrapping doctrine
APA Integration Provision and Exclusive Remedy Clause Bars Seller Claim
Introduction A seller of a mortgage service business could not sue its asset buyer in tort for negligent misrepresentation. The deal The seller was a Denver based company that was formed after the 2008 financial crisis to assess and verify…
Posted in earn out, economic loss doctrine, exclusive remedy, integration clause Tagged with: asset purchase agreement, entire agreement, promise not representation
Boilerplate provision (fraud carve-out) saves the buyer’s fraud lawsuit against the seller of a business
The seller owned and operated a food tray business that sold rigid trays, foam trays, and absorbent pads to food handlers and processors. In the summer of 2014, the seller sought to sell its North American foam tray and pads…
Posted in exclusive remedy, fraud carveout
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Archives
Categories
- "as is where is"
- 363(f)(3) sale
- actual knowledge
- actual notice to known creditors
- agreement to agree is unenforceable
- all cash deal
- allocation of preclosing taxes refunds and credits
- 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
- 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
- bootstrapping doctrine
- breach of contract
- breach of representations and warranties
- breach of seller's covenants
- 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
- 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 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
- 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
- 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 inducement
- fraudulent intent
- fraudulent omission
- full disclosure rep
- further assurance provision
- governmental approval of transaction
- hiring seller's employees
- implied covenant of good faith and fair dealing
- implied warranty of merchantability
- indemnification
- indemnification cap
- inequitable
- insurance broker duty
- insurance coverage
- insurance requirements
- integration clause
- 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
- major shareholders exclusion
- material
- material contracts
- material rep and warranty breach
- 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
- piercing veil of acquisition subsidiary
- post asset purchase issues
- post closing covenants
- post signing asset valuation
- prior-material-breach doctrine
- private equity
- product line exception
- promissory note
- 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
- 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
- revenue and profit projections
- reverse termination or breakup fee
- royalty
- sale leaseback
- sale of assets of business
- sale of business to ESOP
- sale of product line
- 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
- 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
- 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
- union fringe benefits
- union liabilities
- unjust enrichment
- value added tax or VAT
- waiver of contractual provision
- waiver provision
- Withholding Post-closing payments
- working capital adjustment
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