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In most M&A deals involving private targets (including the sales of divisions of publicly traded companies), the purchase agreement will include a baseline dollar value for the target, with several adjustments. Often, the...more
When it comes to commercial leases, offering a tenant the chance to purchase the property or exercise a right of first refusal can be an appealing way to sweeten a deal. However, these options come with layers of complexity...more
On October 16, 2024, in Cytotheryx, Inc. v. Castle Creek Biosciences (Cytotheryx), the Delaware Court of Chancery underscored the limitations of integration clauses in merger agreements in barring claims based on...more
Get up to speed with Ramy Shweiky and Mark Seneca on: Negotiable terms when establishing a purchase price How your purchase price is adjusted at closing Examples of debt-like items...more
The M&A market has witnessed a major increase in the use of earnout deal terms after 2021. The number of deals with earnout provisions jumped from around 20% in 2021 to 33% in 2023....more
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 something near-ubiquitous in M&A purchase...more
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
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
A “sandbagging” provision, sometimes referred to as a “pro-sandbagging” provision,) in an M&A agreement such as an—asset purchase agreement, stock purchase agreement, or merger agreement—states that a buyer's remedies against...more
By including a jury trial waiver in an M&A purchase agreement, the parties agree to waive their rights to a jury trial in any dispute under the M&A agreement. Jury trial waivers may also extend to disputes under all of the...more
Purchase price adjustment provisions are designed to reflect changes in the target's financial condition that occur prior to the closing of the transaction. For example, if on January 1, a transaction is valued, or priced, at...more
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
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
In merger and acquisition (M&A) transactions, the earn-out mechanism serves as a strategic tool for conditional payment based on the prospective performance of the acquired entity. This mechanism is particularly prevalent in...more
Letters of Intent (“LOI”) are often seen as a swift and cost-effective method of gauging whether the parties discussing a proposed transaction have reached a consensus on material terms to warrant proceeding to drafting and...more
It’s nice to get paid. Giving up control of your business? Well… that’s a different story. On closing the sale of a business, owners realize a dramatic financial return on their investment. However, few buyers are willing to...more
We would like to invite you again to our McDermott Deal Academy. This time, our online seminar will focus on the real estate asset class “data centers”. Our real estate and regulatory experts would like to discuss the...more
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
Acquisition agreements in M&A transactions frequently include provision for payment to be made at closing based on estimates of certain financial metrics that are later subject to a purchase price adjustment based on a final...more
Due diligence is a standard phase of any corporate transaction, whether structured as an asset or stock sale or joint venture, and sellers are often surprised, and even overwhelmed, by the comprehensiveness of the diligence...more
Developing successful renewable energy projects begin with selecting the right project site. Securing site control using well drafted real estate contracts and conducting thorough real estate diligence can help identify...more
A recent post-trial decision from Delaware regarding alleged breaches of representations and warranties in an asset purchase agreement is noteworthy. First, the decision highlights how buyers may not be able to rely on...more
Coverage exclusions are a key risk management tool for transactional liability insurers. But they can also be traps for the unwary. In the event of a claims dispute, the insurer will likely bear the burden of proving that an...more
Image a home buyer finally finds their dream house. There’s just one problem. During their home inspection, they discover the foundation is cracked. But they buy the house anyway, fully aware of the issues with the...more
Earnout provisions can be an effective tool for addressing the potential disconnect between a seller’s expectations and a buyer’s ability to pay when negotiating a business combination transaction. Earnout provisions, or...more