Earn-Out Arrangements – Interview with David Lagasse, Member, Mintz Levin
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
Deal structure matters, particularly in bankruptcy. The Third Circuit recently ruled that a creditor’s right to future royalty payments in a non-executory contract could be discharged in the counterparty-debtor’s bankruptcy....more
On April 30, 2024, in Himawan, et al. v. Cephalon, Inc., et al., the Delaware Court of Chancery held that the defendant acquiror complied with its contractual obligations to use commercially reasonable efforts to achieve...more
Ambiguous drafting of earnout provisions in M&A agreements is a perennial source of post-closing disputes. What may have seemed clear to parties in the heat of negotiations can often become less so as time passes,...more
As buyers and sellers engage in negotiations for the sale of a business, often there may be disagreements as to the value and expected growth of that business. One party might currently value the business higher than the...more
Increased use of earnouts is likely to facilitate M&A deals across sectors in Europe. Earnouts are increasingly common in European M&A. The growing prevalence of this contractual provision — in which additional...more
A flexible provision raises questions for buyers and sellers alike. Given the uncertain economic climate of 2023, parties are increasingly turning to earnouts to bridge valuation gaps. As shown by Goodwin’s Private Equity...more
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
The American Bar Association (ABA) 2020 – 2021 Private Target Mergers & Acquisitions Deal Points Study[1] analyzed publicly available acquisition agreements for 123 transactions executed and/or completed in 2020 and the first...more
In Shareholder Representative Services LLC v. Albertsons Companies, Inc., 2021 WL 2311455 (Del. Ch. June 7, 2021), the Delaware Court of Chancery (Slights, V.C.) provided key guidance on mergers and acquisitions (“M&A”)...more
In Shareholder Representative Services LLC v Albertsons Companies, Inc., the aggrieved former shareholders of DineInFresh, Inc., d/b/a Plated, sought recovery of earnout consideration from Plated’s acquirer, Defendant,...more
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
The COVID-19 virus has ushered in unprecedented and challenging times for our country and our global community. From the deeply personal pain and suffering caused by the virus as a health pandemic to behavioral adjustments...more
B&C Holdings, Inc. v. Temperatsure Holdings, LLC, C.A. No. N19C-02-105 AML CCLD (Del. Super. Apr. 22, 2020). As this decision demonstrates, Delaware courts will enforce the plain and ordinary meaning of contractual terms...more
This is certainly a situation where the (purportedly) ancient curse would seem to apply: May you live in interesting times. Living, however, implies moving forward, and that is what the business world is trying to do. ...more
Markmidco S.àr.l., a Luxembourg company, sold to Zeta Interactive Corp. its interest in a customer relationship management business consisting of several companies that provided to retailers email and text message marketing,...more
In the recent case of Glidepath Limited v. Beumer Corporation, the Delaware Court of Chancery considered the case of whether a court could apply equitable principles to reform the dates in a purchase contract for measurement...more