Daniel Avery at Goulston & Storrs PC

10(b)(5) & Full Disclosure Representations

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 either 10b-5 or “full disclosure” representations in merger...more

10/19/2022 / Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Purchase Agreement , Representations and Warranties , Rule 10b-5 , Securities Regulation

Stand-Alone Indemnities (UPDATED)

Market Trends: What You Need to Know - According to the American Bar Association's nine Private Target Mergers and Acquisitions Deal Points Studies, the use of stand-alone indemnities in reported private company M&A...more

10/12/2022 / Acquisition Agreements , American Bar Association (ABA) , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement

No Undisclosed Liabilities Representations - October 2022

In M&A transactions, unknown target liabilities are typically addressed in different ways throughout the M&A purchase agreement. A no undisclosed liabilities representation is one of the principal representations in an M&A...more

10/4/2022 / Acquisition Agreements , Contract Drafting , Contract Terms , Corporate Sales Transactions , Liability , Merger Agreements , Purchase Agreement

Use of Knowledge Qualifiers for Representations and Warranties (UPDATED)

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: “Knowledge” is now almost always defined in private company...more

9/27/2022 / Acquisition Agreements , American Bar Association (ABA) , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties

Sandbagging Provisions (UPDATED)

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

9/20/2022 / Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Purchase Agreement , Sandbagging

Disclosure Schedule Updating

Market Trends: What You Need to Know - Over the past several years: An express right, or obligation, of sellers to update disclosure schedules between signing and closing is becoming less common; instead, more M&A...more

9/13/2022 / Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Disclosure Requirements , Merger Agreements , Purchase Agreement

Representations & Warranty Insurance (UPDATED)

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

9/7/2022 / Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties

Indemnity Escrows - August 2022

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: Indemnity escrows are consistently seen in about two-thirds or more of...more

8/30/2022 / Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Escrow Agreements , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties

Indemnity Baskets (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 time period covered by the nine studies (2005-2021), the level of...more

8/23/2022 / Acquisition Agreements , American Bar Association (ABA) , Basket Transactions , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement , Representations and Warranties

Separate Escrows for Purchase Price Adjustments (UPDATED)

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...more

8/16/2022 / Acquisition Agreements , Contract Terms , Corporate Sales Transactions , Escrow Agreements , Merger Agreements , Purchase Agreement , Purchase Price Adjustment

Exclusion of Consequential Damages (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies: In 2021, 10% of the merger and acquisition purchase agreements covered by...more

8/9/2022 / Breach of Contract , Buyers , Consequential Damages , Contract Terms , Corporate Sales Transactions , Indemnification Clauses , Purchase Agreement , Sellers

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

Waiver of Jury Trials (UPDATED)

Market Trends: What You Need to Know - As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies, over the past twelve or so years, inclusion of jury trial waivers in...more

7/19/2022 / Acquisition Agreements , Contract Drafting , Jury Trial , Jury Waivers , Merger Agreements , Right to a Jury

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

Financial Statement Reps (UPDATED)

Market Trends: What You Need to Know - According to the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies, financial statement representations are universally required from sellers in...more

7/6/2022 / Acquisition Agreements , Corporate Sales Transactions , Financial Statements , GAAP , Merger Agreements , Representations and Warranties

Purchase Price Adjustments (UPDATED)

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

7/1/2022 / Acquisition Agreements , Buyers , Corporate Sales Transactions , Merger Agreements , Purchase Price , Purchase Price Adjustment , Sellers

Target Counsel Legal Opinions (UPDATED)

Market Trends: What You Need to Know - One of the most pronounced practice-related trends in private company merger and acquisition transactions is the near-disappearance of target legal opinions as a closing deliverable....more

6/21/2022 / Acquisition Agreements , Buyers , Buying a Business , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers , Selling a Business

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

After-Tax Indemnity Limitations (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies... Originally Published in Bloomberg Law - May 2022. ...more

5/31/2022 / Acquisition Agreements , Asset Purchase Agreements , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Stock Purchase Agreement

Earnout Provisions

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: - Earnout provisions were included in 20% of the deals reported in the...more

5/24/2022 / Acquisition Agreements , Earn-Outs , EBITDA , Merger Agreements , Setoff Rights

Compliance with Laws Representations (UPDATED)

Market Trends: What You Need to Know - As shown in the American Bar Association’s Private Target Mergers and Acquisitions Deal Points Studies: - Compliance with laws representations are almost always, barring highly...more

5/10/2022 / Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Merger Agreements

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

Daniel Avery

Goulston & Storrs PC

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