Introduction This is another post-closing M&A dispute over an EBITDA earnout. The deal The seller was a San Jose based small security guard service. It sold its assets in September 2016 to a Georgia based nationwide security company with about…
Blog Archives
Lawsuit Over EBITDA Earnout “Determined in Accordance With Buyer’s Historical Reporting Policies”
Posted in bad faith, corporate overhead, de facto merger exception, earn outs, EBITDA Tagged with: corporate overhead in earnouts, EBITDA earnouts
Business Seller Accuses Buyer of Earnout Manipulation
Introduction A seller of a business wants to receive the highest price, and payable in cash at closing. The buyer might want to pay seller’s price but is not sure it is worth that much. How do you bridge the…
Recent Posts
- Judgment Against Buyer CEO for Lying to Target Is Nondischargeable in Bankruptcy
- Shareholder Can’t Challenge Board Merger Approval Because No Change of Control
- Target Shareholders Can’t Compel Target Law Firm to Disclose Merger File
- Buyer Waived Privileged Communications Shared with Target During Due Diligence
- Seller’s CEO Can be Sued for Not Disclosing Buyer’s Unaudited Financials in Proxy
Archives
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- February 2016
Categories
- "as is where is"
- 351 M&A transactions
- 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
- alter ego
- alternative dispute resolution
- ambiguous exclusion
- anti-destruction clause
- anti-reliance clause
- approval of franchisor
- approval of investment banking fee
- arbitration
- arbitration vs expert determination
- asbestos claims
- asset buyer's assumption of seller's liabilities by contract
- asset purchase
- 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
- attorney client privilege
- Attorney's Fee Provision
- bad faith
- bankruptcy sale
- bitcoin
- blockchain
- boilerplate provisions
- book value adjustment
- books and records rep and warranty
- boot
- boot
- bootstrapping doctrine
- breach of contract
- 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 connected to seller insiders
- Buyer payment of seller retained liabilities
- buyer's assumption of seller liabilities in asset acquisition
- buyer's stock as currency
- buying distribution business
- C Reorganization
- California
- capitalization of cash flow
- cash
- cash and cash equivalents
- CERCLA or superfund liability
- certificate of insurance
- certificate of need
- CGL Policy
- Change of Control
- choice of law provision
- choice of law provision
- closing
- commercially reasonable efforts
- common interest doctrine
- compliance with all applicable laws
- conditions to closing for buyer's benefit
- consent to assignment
- consent to assignment
- constructive fraud
- constructive knowledge
- constructive knowledge
- continuity of enterprise exception
- contracts
- contravene strong state public policy
- controlling shareholder fiduciary duty M&A
- copyrights
- corporate overhead
- covenant not to compete
- Covenants
- customer and supplier rep
- customer deposits
- customer list
- customer list
- damages
- de facto merger exception
- deferred closing
- Delaware
- denial of consent must be reasonable
- dental practice sale
- Description of business assets purchased
- determination of purchase price adjustment
- diminuation of value
- direct
- 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 Defend
- Duty to negotiate in good faith
- duty to warn
- earn out
- earn out dispute procedure
- earn outs
- earnout as ownership interest in buyer
- EBITDA
- 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
- F reorganization
- failure to make timely purchase price payment
- 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
- foreign income tax
- form over substance
- 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
- further assurance provision
- governmental approval
- governmental approval of transaction
- Guaranty
- guaranty of related acquisition agreements
- handshake redemption obligation
- hinder, delay or defraud
- hiring seller's employees
- implied assumption of seller contract/liability
- 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
- judgement for intentional misrepresentation
- 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
- 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
- nondischargeable debt in bankruptcy
- nondisclosure agreement
- nondisclosure provision
- nonqualified preferred stock
- nonsolicitation of employees and customers
- note payment amount adjustment
- notice
- notice provision
- officer duty of care
- 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
- Ownership of Target Law Firm File
- parol evidence rule
- patents
- payroll tax
- percentage of purchase price
- personal goodwill
- personal guaranty
- personal guaranty of company debt by selling shareholder
- 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
- PPP loan assumption
- 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
- Revlon doctrine
- Right of publicity
- risk of post closing payments
- 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 approval of deal
- 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
- trademarks
- 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
Recent Comments