M&A Stories February 10, 2026 In lower middle market acquisitions, escrow provisions often create an unintended vulnerability for sellers. Purchase agreements typically impose different time limits depending on how the buyer seeks recovery for pre-closing tax liabilities. The buyer generally…
Blog Archives
M&A Stories – The Escrow Timing Trap: Restricting Tax Claims to Actual Assessments
Posted in escrow, only assessed taxes, sales tax Tagged with: Business Sale, deal structure, Delaware Court of Chancery, escrow, escrow holdback, escrow provisions, escrow release, indemnification, lower middle market, M&A, M&A Disputes, Mergers and Acquisitions, Private Equity, Purchase agreement, Seller Protection, tax assessments, tax claims, Tax indemnity, tax representations, transaction documents
Making Your M&A Forum Selection Clause Mandatory and Broad in Scope
M&A Stories January 22, 2026 One Question: is your current forum selection clause mandatory and apply to lawsuits for fraud and other relationship-based claims? A recent New Jersey court decision involving a business sale and a property lease shows why…
Posted in broad or narrow scope of forum selection clause, mandatory vs. permissive, problems with forum selection clauses Tagged with: APA, asset purchase agreement, Choice of Forum, commercial litigation, Deal Points, dispute resolution, Entity Acquisition, exclusive jurisdiction, Forum selection clause, jurisdiction, legal drafting, LLC Interest Purchase, M&A, Mandatory vs Permissive, merger agreement, Middle Market M&A, Scope of Claims, Seller Advisory, SPA, stock purchase agreement, tort claims, transaction documents, Varda Chocolatier Incorporated v. Shamban, Venue Dispute, Venue Selection
Closing the M&A Deal: Why Sellers Must Link Price Reductions to a Final Post-Closing Release
M&A Stories January 21, 2026 One Question When you grant a price credit during a business sale to resolve a buyer’s skepticism about asset values, does your purchase agreement explicitly define that credit as a final settlement and release of…
Posted in Negotiated Pre-closing price concessions and releases Tagged with: asset purchase agreement, asset sale, Business Sale, Business Valuation, buyer risk, contract drafting, Deal Finality, due diligence, exit strategy, Inventory Dispute, legal risk management, Litigation Prevention, lower middle market, M&A, Negotiated Price Concession, post-closing litigation, Private Target Deals, Risk Allocation, Seller Protection, Settlement and Release
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
Don’t Sign Your M&A Deal Until the Buyer Is Ready to Close
M&A Stories January 5, 2026 One Question If you sign the final deal documents before the buyer is financially ready to close, have you effectively surrendered your best defense against being sued for the entire value of the deal if…
The Importance of Robust Buyer Objective Earnout Covenants
M&A Stories January 1, 2026 One Question for the Seller: Does your purchase or merger agreement list the specific resources the buyer must provide—such as sales headcount and inventory levels—or are you relying on a “best efforts” clause to bridge…
Posted in problems with earnouts, robust objective buyer earnout covenants Tagged with: Best Efforts, buyer covenants, Delaware Court of Chancery, Earn-out Disputes, Fortis Advisors LLC v. Dialog Semiconductor PLC, M&A, merger agreement, Post-Closing Operations, Purchase Agreement Drafting, seller risk management
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…
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
The Buyer’s Blind Spot How a New York Asset Deal Can Become a Legal Trap
Navigate the hidden legal risks of M&A in New York. This post dives into the “mere continuation” doctrine, a legal trap that can expose all-cash asset buyers to a seller’s unassumed liabilities. Learn how to identify and manage the risks…
Posted in mere continuation Tagged with: asset purchase, Avamer, business law, contractual provisions, de facto merger, deal structure, escrow, holdback, Hunter Boot, indemnification, legal risk, legal risk management, lower middle market, M&A, Mere Continuation, Mergers and Acquisitions, New York law, Private Equity, strategic buyers, successor liability
Recent Comments