News & Analysis as of

Purchase Agreement Merger Agreements Contract Terms

Goulston & Storrs PC

What's Market: The Materiality Scrape

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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

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What's Market: No Undisclosed Liabilities Representations

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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

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What's Market: Representations and Warranty Insurance

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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

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What's Market: Alternative Dispute Resolution Provisions

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In M&A purchase agreements, the parties may stipulate certain non-judicial means for dealing with claims under the agreement (e.g., arbitration or mediation). These ADR provisions will govern how disputes between the parties...more

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What's Market: Damage Mitigation Provisions

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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

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What's Market: Exclusion of Consequential Damages

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

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What's Market: After Tax Indemnity Limitations

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

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What's Market: Use of Knowledge Qualifiers

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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 these...more

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What's Market: Waiver of Jury Trials

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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

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What's Market: Compliance With Laws Representations

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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

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What's Market: Indemnity Caps

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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

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Key Takeaways: 2023 ABA Private Target Mergers & Acquisitions Deal Points Study

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The Private Target Mergers & Acquisitions Deal Points Study (“the Study”) is published on a bi-annual basis by the Market Trends Subcommittee of the ABA Business Law Section’s M&A Committee, which I am happy to serve on. The...more

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What's Market: Stand Alone Indemnities

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According to the American Bar Association's nine Private Target Mergers and Acquisitions Deal Point Studies, the use of stand-alone indemnities in reported private company M&A transactions has increased from 69% in its 2007...more

Ius Laboris

Top 11 employment provisions in M&A agreements

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In mergers and acquisitions, both the seller and the buyer may need to include employment-related provisions in the M&A documentation. We have gathered together the most frequent and significant employment provisions for...more

Bilzin Sumberg

The FTC and Non-Competes - Impact on M&A Transactions

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Non-competition agreements and similar restrictive covenants form a bundle of rights and obligations that are hotly negotiated between buyers and sellers in every M&A transaction. These covenants often represent tradeoffs...more

Kramer Levin Naftalis & Frankel LLP

Case Alert: AluminumSource, LLC v. LLFlex, LLC

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

Whitcomb Selinsky, PC

Holdbacks When You Buy

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We’ve all bought something that didn’t live up to our expectations. When it’s something small, we may grumble about it for a moment or two, and move on with our lives. When you’re buying a business, your financial life may...more

Wyrick Robbins Yates & Ponton LLP

Yonder Window Breaks: Earnout Covenants in Acquisitions

Earnouts, which provide sellers payouts if certain post-closing milestones are reached, have become increasingly popular in recent M&A transactions given today’s uncertain regulatory and financial climate.  Inflation, supply...more

Woodruff Sawyer

R&W Claims 101: Key Policy Sections That Impact Claims

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Though reps and warranties insurance policies are becoming increasingly common in the mergers and acquisitions (M&A) world, there is much less familiarity with the handling of any resulting claims. Even seasoned clients and...more

Woodruff Sawyer

R&W Claims 101: Types of Claims

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Representations and warranties (R&W) insurance covers a breach of the reps and warranties contained in the purchase agreement governing a merger or acquisition. Since reps and warranties insurance policies are...more

Goulston & Storrs PC

Stand-Alone Indemnities (UPDATED)

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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

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No Undisclosed Liabilities Representations - October 2022

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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

Goulston & Storrs PC

Use of Knowledge Qualifiers for Representations and Warranties (UPDATED)

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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

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Disclosure Schedule Updating

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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

Goulston & Storrs PC

Representations & Warranty Insurance (UPDATED)

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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

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