Introduction An acquisition of a company is sometimes done in one step: the buyer and seller sign a purchase agreement and immediately close the transaction on the same day. This is called a simultaneous closing. Alternatively, the buyer and seller…
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Buyer Didn’t Waive Seller Breach by Amending Asset Purchase Agreement
Posted in asset purchase agreement, boilerplate provisions, breach of representations and warranties, breach of seller's covenants, deferred closing, representations and warranties, seller's covenants, waiver provision Tagged with: seller's breach of covenants, seller's breach of representations and warranties, waiver in writing, waiver of breach
Buyer of business strikes out after protracted litigation trying to recover lost profit damages from seller
Buyer wanted to enter the annual $5 billion revenue back-to-school season market for the sale of school supplies. Since Buyer needed inventory, licenses, and retailer relationships to get the ball rolling, it decided to buy the stationery division at Seller,…
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- "as is where is"
- actual knowledge
- actual notice to known creditors
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- alter ego
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- asset buyer's assumption of seller's liabilities by contract
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- Assignment
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- buyer's stock as currency
- buying distribution business
- California
- cash and cash equivalents
- CERCLA or superfund liability
- certificate of insurance
- choice of law provision
- closing
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- conditions to closing for buyer's benefit
- constructive knowledge
- constructive knowledge
- continuity of enterprise exception
- controlling shareholder fiduciary duty M&A
- covenant not to compete
- Covenants
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- damages
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- Description of business assets purchased
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- due diligence
- Duty to negotiate in good faith
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- earn out
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- economic loss doctrine
- employment agreement
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- enforce against nonparty
- entire fairness
- environment representations and warranties
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- equitable contribution
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- excluded liabilities
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- executory contracts
- extension of closing
- extra-contractual fraud
- 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
- financing contingency
- for cause termination
- force majeure
- forum selection clause
- fraud carveout
- fraud in business sale
- 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
- 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
- noncompete area
- nondisclosure agreement
- nondisclosure provision
- nonsolicitation of employees and customers
- 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
- 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 signing asset valuation
- prior-material-breach doctrine
- private equity
- products line exception
- promissory note
- public information exclusion
- punitive damages
- purchase agreement
- purchase price
- 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
- retaliation
- revenue and profit projections
- reverse termination or breakup fee
- 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 warranty claims
- 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
- 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
- unemployment tax rate liability
- union fringe benefits
- union liabilities
- value added tax or VAT
- waiver of contractual provision
- waiver provision
- Withholding Post-closing payments
- working capital adjustment
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