M&A Stories December 04, 2020 Introduction An acquisition often involves a post-closing purchase price adjustment reflecting the value of the net assets at closing. The parties often agree to submit any dispute over this calculation to an independent accounting firm.…
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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…
Court Rules That EY Earnout Calculation Was Arbitration Not Expert Determination
Introduction There are often post-closing calculations that must be made in an M&A deal. Examples are working capital and earnout calculations. Often the parties agree in advance to a dispute resolution procedure in the M&A documents in the event there…
Purchase agreement required working capital dispute to be resolved by arbitration not expert determination
Seller is a Delaware corporation involved in the enterprise risk intelligence software business. On October 16, 2017, Seller and Buyer entered into an asset purchase agreement under which Buyer purchased substantially all of Seller’s assets. The asset purchase agreement provided for a…
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- misappropriation of likeness
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- net working capital adjustment
- New York
- no kickback or bribe rep
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- No Undisclosed Liabilities
- non-reliance clause
- nonbinding
- nonbusiness income/sale of subsidiary
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- post asset purchase issues
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- preservation of due diligence materials
- prior-material-breach doctrine
- private equity
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- projections
- projections
- promissory estoppel
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- 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
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- 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
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- Right of publicity
- risk of post closing payments
- royalty
- S corporation
- sale leaseback
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- sale of business to ESOP
- sale of product line
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- SBA approval re PPP loan
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- securing buyer's note
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- seller carried purchase price
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- structure of transaction
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- substantially all assets
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- Taxation
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- valuation
- value added tax or VAT
- waiver of contractual provision
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- waiver provision
- willful breach carveout
- Withholding Post-closing payments
- working capital adjustment
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