Introduction The Seller got past a motion for summary judgment in its gross profits earnout lawsuit against its strategic buyer. See http://www.mk-law.com/wpblog/court-gives-pharmacy-seller-chance-to-collect-earnout/ for my earlier blog about the summary judgment motion. But, although the seller won the battle, it ultimately…
Blog Archives
Strategic Buyer’s Refusal to Sign APA Authorized by LOI
Introduction The Mississippi high court held that an LOI gave a strategic buyer the right to not sign an APA. The deal The seller started operations as a Mississippi hospice in June of 2007. The founder and owner ran it…
Buyer blows merger extension deadline, fights $126 million breakup fee
Introduction A seller of a business may want the right to terminate a deal if a more attractive offer comes along; especially if the seller is a public company. The buyer will often agree to this provided that the seller…
Posted in extension of closing, implied covenant of good faith and fair dealing, merger, reverse termination or breakup fee, termination of M&A agreement, termination or breakup fee Tagged with: breakout fee, extension of closing, implied covenant of good faith and fair dealing, reverse breakout fee, reverse termination fee, termination fee
Seller of business had no obligation to subordinate its purchase money promissory note to buyer’s bank
Target is a business located in Palo Alto, California, which specializes in the electro-plating of metal components for industrial uses. In the spring of 2014, Seller (the sole owner of all shares in Target) was approached by representatives of companies…
Employee loses vested stock options upon sale of controlling interest in Employer
Employee is an executive with expertise in revenue cycle management and outsourcing phone calls and business processing services in the healthcare industry. Target is a Tampa, Florida based private company providing healthcare business outsourcing and knowledge process outsourcing services to…
Recent Posts
- Seller Subsidiary, not a Party to SPA, Bound by Its Delaware Forum Selection Clause
- Buyer Signed Letter of Intent but Had No Duty in Texas to Negotiate in Good Faith
- Product Line Exception Creates Additional Successor Liability Risk for Buyer of Business Assets
- Very Risky for Seller to Give Buyer Keys to Business Before Closing
- Business Buyer Recovers Damages for Seller Sufficiency of Assets Rep & Warranty Breach
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- "as is where is"
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- Assignment
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- attorney client privilege
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- bankruptcy sale
- best efforts to secure financing
- bitcoin
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- boilerplate provisions
- bona fide offer
- book value adjustment
- books and records rep and warranty
- boot
- boot
- bootstrapping doctrine
- breach of contract
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- breach of contract exclusion
- breach of representations and warranties
- breach of seller's covenants
- business cards
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- buyer assumption of seller liability
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- buyer connected to seller insiders
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- C Reorganization
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- closing
- co-author
- commercially reasonable efforts
- common interest doctrine
- compliance with all applicable laws
- conditions to closing for buyer's benefit
- consent to assignment
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- constructive knowledge
- constructive knowledge
- continuity of enterprise exception
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- contracts
- contravene strong state public policy
- controlling shareholder fiduciary duty M&A
- copyrights
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- Covenants
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- customer deposits
- customer list
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- deferred closing
- Delaware
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- dental practice sale
- Description of business assets purchased
- determination of purchase price adjustment
- diminuation of value
- direct
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- discharge in bankruptcy
- disclosure schedule
- discounted cash flow or DCF
- dispute resolution procedure
- dispute resolution provision
- distressed business acquisitions
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- due diligence
- Duty to Defend
- duty to defend
- Duty to negotiate in good faith
- duty to warn
- earn out
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- earn outs
- earnout
- 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
- equitable estoppel
- escrow
- excluded liabilities
- excluded or retained liabilites
- exclusive remedy
- exclusivity provision
- excuse for untimely indemnification claim
- 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
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- fraud
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- fraud carveout
- fraud in business sale
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- fraudulent concealment
- fraudulent inducement
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- full disclosure
- full disclosure rep
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- further assurance provision
- further assurance provision
- governmental approval
- governmental approval of transaction
- Guaranty
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- 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 duty 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
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- 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
- 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
- nonsolicitation of former 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
- oral copyright agreement
- 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 adjustments for pre-closing sales and services
- post-closing sales tax
- PPP loan
- PPP loan assumption
- pre-closing management agreement
- pre-closing operating arrangement
- 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
- receivables
- 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 imposed on equity sale of DRE
- sales tax risk
- SBA approval re PPP loan
- scienter
- Section 1377 election
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- seller carried purchase price
- seller knowledge
- 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 personal guaranty of target lease
- shareholder release
- sharing transaction tax deduction benefits
- sick time
- signing LOI with revisions by signer
- specific performance
- state and local tax
- 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
- sufficiency of assets rep
- supply problems
- survival of covenants
- survival of reps and warranties
- tangible net worth
- target's stock options
- tax
- 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
- time of the essence
- 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 jury trial
- waiver of removal to federal court
- waiver provision
- willful breach carveout
- willing buyer or procuring cause
- Withholding Post-closing payments
- working capital adjustment
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