News & Analysis as of

Buyers Acquisitions Contract Terms

DarrowEverett LLP

Survival Periods and Delaware’s Statute of Limitations in M&A

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Delaware is well known as a favored jurisdiction for mergers and acquisition deals, and for good reason — the jurisdiction’s business-friendly legal environment offers numerous efficiencies and predictability. Attorneys and...more

Benesch

Earnout Held to Violate NY Fee Splitting Prohibition

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A pivotal decision by a New York Appellate Division court holding that earnouts based on the future revenue of a dental practice violated the NY Fee Splitting Prohibition could substantially impact the structuring of health...more

Stradling Yocca Carlson & Rauth

Representation and Warranties Play a Crucial Role in Business Transactions

Representations and warranties play a crucial role in business transactions and are commonly used in merger and acquisition agreements to allocate risk between sellers and buyers. Accurate representations and reliable...more

Buckingham, Doolittle & Burroughs, LLC

Selling a business in the current high-deal volume environment

Selling a business in any environment can be challenging when planning is not addressed early in the M&A process. The challenges are heightened in the current environment where buyers are looking at multiple potential deals...more

Cooley LLP

What is a ‘Drag-Along’?

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You’ve just received a term sheet for your Series A financing, and it mentions a “drag-along.” What does this mean, and should you be concerned about it?...more

Goodwin

Use of EBITDA in Earnouts Increased 22% in Two Years

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From 2020 to 2022, EBITDA became almost as prevalent as revenue metrics for determining earnout payments, according to analysis of the Goodwin Private Equity Deals Database. In 2022, EBITDA was used in 40% of earnouts, up 22%...more

Rivkin Radler LLP

Letters of Intent – Negotiating the Framework of Your Transaction

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In our last installment, we discussed some of the initial steps involved in the process of selling a dental practice, including preparing your practice for sale and finding a potential suitor. Specifically, we described ways...more

TransPerfect Legal

What’s Trending: Milestone Disputes in Life Sciences Litigation

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Earlier this month, the ACC hosted an illuminating panel presentation on Life Sciences Litigation: A Look at Milestone Disputes & Recent Trends. Panelists included Lauri Mims and Jennifer Huber, both Partners at Keker Van...more

Nutter McClennen & Fish LLP

M&A in Brief: Q2 2022

Delaware Clarifies “Pro-Sandbagging” Stance by Mark Tarallo and Mary Moran In almost every M&A transaction, the parties spend some time discussing (if not heavily negotiating) the right of the buyer to bring claims against...more

White & Case LLP

Notable decisions from Delaware courts

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Bardy Diagnostics: Chancery confirms high bar for material adverse effect - The Delaware Court of Chancery was once again required to determine whether a potential buyer should be relieved of its obligation to acquire a...more

Latham & Watkins LLP

Delaware Court Nixes Deal Due to Seller’s Failure to Operate in “Ordinary Course” During COVID-19

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The decision leaves the door open for buyers to argue that inflexible ordinary course covenants can provide a basis to terminate a transaction in which a seller does not suffer an MAE. Key Points: ..The Delaware Court...more

Jackson Walker

Earnouts in M&A Transactions

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An “earnout” is a deal mechanism used in a merger and acquisition transaction (“M&A Transaction”) which structures the terms upon which a buyer agrees to pay additional consideration to the seller after the closing of the M&A...more

Skadden, Arps, Slate, Meagher & Flom LLP

WEX Win Interpreting COVID-19 Material Adverse Effect Shows M&A Drafting Traps

On October 12, 2020, in Travelport Ltd & Ors v WEX Inc [2020] EWHC 2670, Justice Cockerill of the English High Court held that WEX had in large part correctly interpreted the terms of the material adverse effect (MAE) clause...more

Vinson & Elkins LLP

[Webinar] Navigating Post-Covid Diligence Issues in M&A Transactions - September 24th, 10:00 am - 11:00 am CT

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The COVID-19 pandemic and the accompanying market downturn have resulted in widespread uncertainty felt on a global scale – including in the M&A space. This webinar will explore ways M&A transactions – particularly due...more

McDermott Will & Emery

[Webinar] Managing M&A Opportunities and Risk for Japanese Investors During COVID-19 and Beyond - June 4th, 7:00 am - 8:00 am CEST

The COVID-19 pandemic is bringing unprecedented disruption to the global M&A market. Even in today’s uncertain environment, however, certain deals are still moving forward. To usher existing agreements to successful...more

Holland & Hart LLP

Sellers Beware! Three Crucial Terms To Review In Your Buyer's Acquisition Financing

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During the frenzied period before execution of an acquisition agreement, a seller will be overwhelmed with pressing tasks, so the terms of the buyer’s financing may not be front of mind. There is good reason for this since it...more

White & Case LLP

M&A MAC Clauses – Implications of Coronavirus

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Trends in Material Adverse Change Clauses – Implications of Coronavirus on M&A Transactions - On M&A transactions deal certainty may be a key negotiation issue. Whilst a seller may be reluctant to concede a material...more

Akin Gump Strauss Hauer & Feld LLP

The Coronavirus and M&A Transactions: MAE Clauses

In late 2019, COVID-19 (more commonly known as the coronavirus) began to spread throughout mainland China, and has since spread around the world, affecting numerous lives and businesses. As a result, companies spanning a wide...more

White & Case LLP

2019 Half-year in review: M&A legal and market developments

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We set out in the attached Newsletter a number of interesting English court decisions and market developments which have taken place in the second half of 2019 and their impact on M&A transactions. This review looks at these...more

Dechert LLP

Global Private Equity Newsletter - Winter 2019 Edition: U.S. Carve-Out Transactions: A Fertile Ground for Private Equity Firms

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Driven by the influence of shareholders, activists and competitive market forces, public companies are demonstrating renewed focus on their core businesses. Reductions in the U.S. corporate tax rate from 35% to 21% have...more

Hutchison PLLC

Getting Counsel to Draft #MeToo Reps and a “Weinstein Clause” into Your Offer Terms

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Contemplating a merger? Making an acquisition? Doing a deal with another company can be challenging enough, without having to take on legal liability for the behavior of a company’s leadership, particularly where success of...more

Ward and Smith, P.A.

Selling Your Business: It Starts Before the Sale

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...The sale process doesn’t happen overnight, and there are many things before the sale that can greatly impact the sale. However, positioning your business in the best possible ways for sale has a wide range of meaning....more

Faegre Drinker Biddle & Reath LLP

How High Can We Fly: Cautious Optimism for M&A in 2019

After several strong years, the mergers and acquisitions (M&A) market stumbled a bit in the last few months of 2018. According to early reports, the number of middle market M&A transactions completed in the U.S. declined by...more

Skadden, Arps, Slate, Meagher & Flom LLP

Delaware Supreme Court Affirms Akorn

On December 7, 2018, the Delaware Supreme Court affirmed the Court of Chancery's decision in Akorn, Inc. v. Fresenius Kabi AG , C.A. No. 2018-0300-JTL, which upheld, for the first time under Delaware law, the ability of a...more

Fenwick & West LLP

Akorn v. Fresenius: Important Practical Lessons from First-Ever Material Adverse Effect

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On October 1, in Akorn v. Fresenius Kabi, the Delaware Court of Chancery for the first time found that a material adverse effect — or MAE — had occurred in a merger transaction, which, combined with other breaches of the...more

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