M&A Stories January 11, 2026 One Question If a buyer with multiple subsidiaries moves your legacy customers and star salespeople to a different branch of their company, does your earnout contract contain the specific “if/then” rules required to prove a…
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Payout Denied: Why This Seller’s Earnout Claim Failed at the Dismissal Phase
Posted in Cross-Selling Earnout Credit, Key Employee Retention Requirement, problems with earnouts, robust objective buyer earnout covenants Tagged with: asset purchase agreement, Collab9 LLC v. En Pointe Technologies Sales LLC, Continuity of Business, Delaware law, Earnout disputes, key employee retention, Motion to Dismiss, Personnel Quarantine, Post-closing integration, Revenue Mapping, seller risk management, strategic buyers, Subsidiary Revenue Shifting, Target Business Unit
The Critical Need for Robust and Objective Buyer Construction Milestones for Earnouts
M&A Stories January 8, 2026 One Question If your payout depends on the buyer building a facility or hitting a production goal, does your contract explicitly mandate the funding and equipment purchases, or are you relying on a “plan” the…
Posted in earnouts based on construction milestones, problems with earnouts Tagged with: asset purchase agreement, Construction Milestones, Corporate Authority, earnouts, Fortis Advisors LLC v. Stora Enso AB, lower middle market, M&A, Milestone payments, post closing covenants, seller risk management
Secure the Buyer’s Infrastructure Commitment or Risk Losing Your Earn-Out
One Question Diagnostic: If your earn-out hinges on the buyer providing specific tools, staff, or technology, have you turned those promises into a mandatory contract requirement, or are you hoping their business interests will stay aligned with yours? M&A Stories…
Posted in problems with earnouts, Put buy infrastructure promises in writing Tagged with: American Capital Acquisition Partners LLC v LPL Holdings Inc, anti-reliance clause, asset purchase agreement, buyer covenants, Contingent Payments, Deal Synergies, Earn-outs, implied covenant of good faith and fair dealing, Infrastructure Requirements, legal risk management, lower middle market, M&A Disputes, merger agreement, Post-closing integration, Revenue Targets, seller protections, stock purchase agreement, Technical Integration Risks
Protecting Your Earn-Out with a Robust Buyer Litigation Warranty
One Question Executive Summary: If you are a seller looking at an earn-out offer, there is one question you must ask your advisor before you agree to a simultaneous closing: Does the buyer’s litigation representation protect me if their entire…
Stop the Buyer’s Double-Dip: Managing Simultaneous Claims for Damages and Non-Compete Extensions
This blog post explores a critical pre-closing risk management tool for sellers facing aggressive restrictive covenants in an asset purchase agreement. By examining a recent 2025 Texas case involving a youth football league, the article reveals how the combination of…
Posted in covenant not to compete, noncompete term extensions Tagged with: asset purchase agreement, business goodwill protection, business transition period, cumulative remedies, deal negotiation strategies, EBITDA-based damages, election of remedies, ethical seller advice, Larocque v. Flagco. LLC, legal risk mitigation, liquidated damages, lost profits calculation, lower middle market M&A, M&A legal drafting, M&A litigation, net profit vs gross revenue, non-compete extension, per-diem credit, Post-closing disputes, private equity buyer tactics, restrictive covenant breach, seller risk management, Texas contract law, tolling provision, youth sports business sale
The “Freight-In” Blind Spot: You Can’t Fix What You Don’t Diagnose
Discover how a hidden “goods in transit” accounting error triggered a post-closing fraud lawsuit for a lower middle market seller in the FeraDyne Outdoors v. Reaser case. This post analyzes the dangers of relying on informal email assurances and historical…
Posted in Problems with financials Tagged with: accounting dispute resolution, accrued expenses, asset purchase agreement, Breach of contract, Business Valuation, Delaware Superior Court, distribution business sale, EBITDA definition, entire agreement clause, FeraDyne Outdoors v. Reaser, freight-in costs, GAAP compliance in M&A, goods in transit accounting, integration clause, inventory liability, legal risk management tool, lower middle market M&A, M&A Due Diligence, M&A fraud allegations, manufacturing M&A, post-closing litigation, pre-closing risk management, private equity buyer, purchase price dispute, quality of earnings, seller representation, specific accounting principles, targeted financial review, unrecorded liabilities, working capital adjustment
When M&A Disputes Go Public: The Lesson of Broad Delaware Choice-of-Law Clauses
Avoid costly post-closing legal battles! This post breaks down the pivotal Delaware Court of Chancery ruling, Cytotheryx, which confirmed that a broadly worded Delaware choice-of-law clause in a merger agreement applies not just to contract disputes, but also to related…
Posted in boilerplate provisions, choice of law provision, scope Tagged with: APA, asset purchase agreement, Choice of Law Clause, contract drafting, Contractarian Law, Cytotheryx v. Castle Creek, Deal Counsel, Defamation, Delaware Choice-of-Law, Delaware Court of Chancery, fraud claims, Governing Law Provision, Innocent Construction Rule, litigation risk, lower middle market, M&A, M&A legal, M&A Risk Management, merger agreement, Mergers and Acquisitions, Misrepresentation, Post-Closing Dispute, Predictability in M&A, Private Equity, private target, seller side M&A, SPA, stock purchase agreement, Strategic buyer, tort claims
When an Integration Clause Alone Can Block an M&A Extracontractual Fraud Claim
Explore the powerful, yet specific, defense offered by an Integration Clause in M&A disputes. This analysis of a recent Delaware Court of Chancery decision, Park7 Student Housing v. PR III, shows how a clear Integration Clause can protect lower middle…
Posted in anti-reliance clause, extra-contractual fraud, fraud in business sale, integration clause Tagged with: Acquisition Agreement, anti-reliance clause, asset purchase agreement, closing conditions, contract defenses, contractual language, deal protection, Delaware Court of Chancery, equity purchase agreement, extracontractual fraud, Fraudulent inducement, integration clause, legal risk management, LLC equity acquisition, lower middle market M&A, M&A contracts, M&A litigation, membership interest purchase agreement, Park7 Student Housing, private target acquisition, seller side risk management, stock purchase agreement, unit purchase agreement
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