M&A Agreements: Limitations on Contractual and Extra-Contractual Liabilities©

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In This Issue:

- Perspective

- Pre-Signing Definitive Documents

- Between Sign and Close

- Post-Closing: Fraud Claims

- Post-Closing: Survival Clauses

- More on Fraud: Not all Erroneous Statements of Fact Constitute Fraud

- More on Fraud: Non-Party Liability

- More on Fraud: Exclusive Remedies

- More on Fraud: Liability Limitations

- More on Fraud: Disputed Boundaries Between Tort, Contract and Equity

- Model Provision – Entire Agreement

- Model Provision – Nature of Representations and Warranties

- Model Provision – Non-Reliance of Buyer

- Model Provision – Non-Recourse

- Model Provision – Exclusive Remedies

- Further Reading

- Excerpt from Perspective:

- Purchase agreements frequently incorporate well-defined indemnification and liability limitation provisions

- Buyers dissatisfied with the deal often attempt to circumvent such provisions by premising tort-based fraud and negligent misrepresentation claims on the alleged inaccuracy of purported pre-contractual representations and/or express, contractual representations

- Tough to define, easy to allege, hard to dismiss on a pre-discovery motion, difficult to disprove without expensive and lengthy litigation, highly susceptible to the erroneous conclusions of judges and juries

Please see full presentation below for more information.

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