Daniel Avery

Daniel Avery

Goulston & Storrs PC

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Non-Reliance & NOR Provisions

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Express non-reliance provisions are increasingly common in merger and...more

8/2/2022  /  Acquisition Agreements , Contract Drafting , Contract Terms , Corporate Sales Transactions , Merger Agreements , Non-Reliance Clauses , Purchase Agreement

Damage Mitigation Provisions - (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Inclusion of damage mitigation provisions in merger and acquisition...more

7/27/2022  /  Acquisition Agreements , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement

Indemnification as an Exclusive Remedy (UPDATED)

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Over the time period covered by the nine ABA studies (2005-2021), the...more

7/12/2022  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Exclusivity Clauses , Fraud , Indemnification , Merger Agreements , Purchase Agreement , Remedies

The 'Materiality Scrape'

Market Trends: What You Need to Know - Over the past 15+ years covered by the ABA studies, materiality scrapes have morphed from being a somewhat uncommon provision, seen in about 14% of transactions in 2005, to...more

6/14/2022  /  Acquisition Agreements , Buying a Business , Contract Drafting , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties , Selling a Business

Indemnity Caps (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies. Over the nine ABA studies (2005-2021), indemnity caps have declined as a...more

6/7/2022  /  Acquisition Agreements , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement , Representations and Warranties

Alternative Dispute Resolution Provisions (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: Overall, alternative dispute resolution provisions are becoming less...more

5/5/2022  /  Acquisition Agreements , Arbitration , Arbitration Agreements , Binding Arbitration , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Mediation , Merger Agreements , Purchase Agreement

Representations & Warranty Insurance

Market Trends: What You Need to Know - RWI is an increasingly important feature of private company M&A transactions. Every other year since 2005 the ABA has released its Private Target Mergers and Acquisitions Deal Point...more

6/9/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Representations and Warranties

Indemnity Baskets

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law....more

6/1/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties

Indemnity Caps

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Over the eight ABA studies (2005-2019), indemnity caps have declined as a...more

5/14/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Merger Agreements , Representations and Warranties

After-Tax Indemnity Limitations

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Since 2011, the use of after-tax indemnity limitations has steadily decreased,...more

5/6/2021  /  Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Indemnity , Liability , Merger Agreements , Purchase Agreement , Tax Benefits

Separate Escrows for Purchase Price Adjustments

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: - The use of separate escrows for purchase price adjustments has been increasing on...more

4/29/2021  /  Acquisition Agreements , Buyers , Contract Formation , Contract Terms , Corporate Sales Transactions , Escrow Accounts , Merger Agreements , Purchase Price Adjustment , Sellers

Insurance Reduction Provisions

Market Trends: - What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law - April 2021....more

4/16/2021  /  Asset Purchase Agreements , Contract Terms , Corporate Sales Transactions , Indemnification Clauses

Exclusion of Consequential Damages

Market Trends: - What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law - April 2021....more

4/9/2021  /  Breach of Contract , Buyers , Consequential Damages , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sellers

Non-Reliance and NOR Provisions

Market Trends: - What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published by Bloomberg Law - March 2021....more

3/30/2021  /  Buyers , Carve Out Provisions , Contract Terms , Corporate Sales Transactions , Non-Reliance Clauses , Purchase Agreement , Sandbagging , Sellers

Damage Mitigation Provisions

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies - Inclusion of damage mitigation provisions in merger and acquisition...more

3/23/2021  /  Buyers , Common Law Claims , Contract Terms , Damages , Indemnification , Merger Agreements , Purchase Agreement , Sellers , Stock Purchase Agreement

Compliance with Laws Representations

Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally published by Bloomberg Law....more

3/16/2021  /  American Bar Association (ABA) , Buyers , Contract Terms , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers , Stock Purchase Agreement

No Undisclosed Liabilities Representations

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally Published in Bloomberg Law - February 2021....more

2/17/2021  /  Acquisition Agreements , American Bar Association (ABA) , Balance Sheets , Buyers , Carve Out Provisions , Contract Drafting , Contract Terms , Corporate Sales Transactions , GAAP , Liability , Merger Agreements , Purchase Agreement , Sellers

Use of Knowledge Qualifiers for Representations and Warranties

Introduction - In merger and acquisition (M&A) transactions, the definitive purchase agreement typically contains representations and warranties made by the seller with respect to the target company. The scope and detail of...more

2/15/2021  /  Acquisition Agreements , Actual or Constructive Knowledge , Contract Terms , Corporate Sales Transactions , Merger Agreements , Representations and Warranties

Indemnification as an Exclusive Remedy

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies... Originally published by Bloomberg Law....more

1/6/2021  /  Carve Out Provisions , Contract Drafting , Contract Terms , Corporate Sales Transactions , Fraud , Indemnification , Purchase Agreement

Purchase Price Adjustments

Market Trends: What You Need to Know - Based on the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Purchase price adjustments continue to be commonplace in M&A agreements. In the...more

12/16/2020  /  Buyers , Contract Drafting , Contract Terms , Corporate Sales Transactions , GAAP , Purchase Price Adjustment , Sellers

Sandbagging Provisions

Market Trends: What You Need to Know - “Sandbagging” concepts are often the subject of intense negotiation in M&A transactions. Inclusion of pro-sandbagging clauses within M&A purchase agreements has been on the decline,...more

12/10/2020  /  Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sandbagging

The ‘Materiality Scrape’ Provision What’s Market?

Market Trends: What You Need to Know - Over the past almost 15 years covered by the ABA studies, materiality scrapes have morphed from being a somewhat uncommon provision, seen in about 14% of transactions in 2005, to...more

11/12/2020  /  Breach of Contract , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Material Adverse Effects , Materiality , Merger Agreements , Representations and Warranties

Evolving Private Company M&A Considerations in the COVID-19 Era

The virus that causes COVID-19 has ushered in unprecedented times for our country and our global community. Certainly, the pandemic is impacting the way M&A transactions are looked at, papered, implemented, and even priced....more

10/23/2020  /  CARES Act , Change of Ownership , Contract Terms , Coronavirus/COVID-19 , Corporate Sales Transactions , Disclosure Requirements , Infectious Diseases , Letters of Intent , Material Adverse Change Clauses (MACs) , Paycheck Protection Program (PPP) , Purchase Agreement , Representations and Warranties

COVID Impact as a Standalone Indemnity in M&A Transactions

Introduction - The COVID virus has ushered in unprecedented and challenging times for our country and the global community. From the deeply personal pain and suffering caused by the virus as a health pandemic to behavioral...more

8/11/2020  /  Acquisition Agreements , Contract Terms , Coronavirus/COVID-19 , Corporate Sales Transactions , Indemnity , Merger Agreements , Representations and Warranties

Court Partially Excuses Tenant’s Rent Obligations During COVID Shutdown

In the social and economic fallout from COVID, businesses are assessing how best to address their commercial relationships, especially where potentially insurmountable barriers to performance loom large. One clause that...more

8/5/2020  /  Commercial Bankruptcy , Commercial Leases , Commercial Tenants , Contract Terms , Coronavirus/COVID-19 , Corporate Counsel , Financial Distress , Force Majeure Clause , Landlords , Late Payments
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