Daniel Avery on Representations and Warranties

What's Market: No Undisclosed Liabilities Representations

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

9/16/2024 / Acquisition Agreements , American Bar Association (ABA) , Balance Sheets , Buyers , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , GAAP , Liability , Merger Agreements , Popular , Purchase Agreement , Representations and Warranties , Sellers

What's Market: Representations and Warranty Insurance

Representation and warranty insurance (“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

9/16/2024 / Acquisition Agreements , American Bar Association (ABA) , Buyers , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers

What's Market: Indemnity Escrows

Merger and acquisition (M&A) purchase agreements generally include indemnification provisions, pursuant to which any given party (indemnitor) agrees to defend, hold harmless, and indemnify the other party or parties...more

9/13/2024 / Acquisition Agreements , American Bar Association (ABA) , Corporate Sales Transactions , Escrow Agreements , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties

What's Market: Indemnity Baskets

In merger and acquisition (M&A) transactions, the definitive purchase agreement, whether asset purchase agreement, stock purchase agreement, or merger agreement, typically contains representations and warranties made by the...more

9/13/2024 / Acquisition Agreements , Basket Transactions , Buyers , Corporate Sales Transactions , Indemnification Clauses , Indemnity , Merger Agreements , Purchase Agreement , Representations and Warranties , Sellers

What's Market: Financial Statement Reps

According to the American Bar Association's Private Target Mergers and Acquisitions Deal Points Studies, financial statement representations are universally required from sellers in private company M&A deals, included in...more

9/11/2024 / Acquisition Agreements , Books & Records , Buyers , Corporate Sales Transactions , Financial Statements , GAAP , Merger Agreements , Representations and Warranties , Sellers

What's Market: Compliance With Laws Representations

In M&A transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains representations, warranties, and covenants, along with related...more

9/9/2024 / Acquisition Agreements , American Bar Association (ABA) , Buyers , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Merger Agreements , Popular , Purchase Agreement , Representations and Warranties , Sellers

What's Market: Indemnity Caps

In merger and acquisition (M&A) transactions, the definitive purchase agreement whether asset purchase agreement, stock purchase agreement, or merger agreement typically contains representations and warranties made by the...more

9/9/2024 / Acquisition Agreements , American Bar Association (ABA) , Contract Drafting , Contract Negotiations , Contract Terms , Corporate Sales Transactions , Indemnity Agreements , Merger Agreements , Purchase Agreement , Representations and Warranties

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

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

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

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

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

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 Escrows - June 2021

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

6/3/2021 / Corporate Sales Transactions , Escrow Agreements , Indemnification Clauses , Purchase Agreement , 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

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

10b-5 and Full Disclosure 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 in Bloomberg Law - February 2021. ...more

2/24/2021 / Disclosure Requirements , Purchase Agreement , Representations and Warranties , Rule 10b-5

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

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

Daniel Avery

Goulston & Storrs PC

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