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Alternative Dispute Resolution Provisions

Published by Bloomberg Law
Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Overall, alternative dispute resolution provisions are becoming less common in private company merger and acquisition (M&A) transactions. Inclusion of ADR provisions has declined over the past several...
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10b-5 and Full Disclosure Representations

Published by Bloomberg Law
Market Trends: What You Need to Know As shown in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Inclusion of either 10b-5 or “full disclosure” representations in merger and acquisition purchase agreements is becoming less common, declining from a peak of 67% in the 2009...
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No Undisclosed Liabilities Representations

Published by Bloomberg Law
Market Trends: What You Need to Know As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Mergers and acquisitions (M&A) purchase agreements almost universally include a “no undisclosed liabilities” (NUL) representation. Specifically, across the eight ABA studies, an NUL representation was included in...
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Use of Knowledge Qualifiers for Representations and Warranties

Published by Bloomberg Law
Market Trends: What You Need to Know As reflected in the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: “Knowledge” is now almost always defined in private company transaction agreements. For example, in the 2019 study only 1% of the reported deals left knowledge undefined. The...
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Waiver of Jury Trials

Published by Bloomberg Law
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 past twelve or so years, inclusion of jury trial waivers in mergers and acquisitions (M&A) agreements has increased from 50% of reported transactions in the...
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Financial Statement Reps

Published by Bloomberg Law
Market Trends: What You Need to Know According to the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies, financial statement representations are universally required from sellers in private company M&A deals, included in 100% of transactions covered by the most recent study in 2019. Prior ABA...
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Indemnification as an Exclusive Remedy

Published by Bloomberg Law
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 eight ABA studies (2005-2019), the inclusion of exclusivity of remedies (EOR) provisions has become commonplace: included within 76% to 95...
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Purchase Price Adjustments

Published by Bloomberg Law
Market Trends: What You Need to Know Based on the American Bar Association's Private Target Mergers and Acquisitions Deal Point Studies: Purchase price adjustments continue to be commonplace in M&A agreements. In the 2019 study, they were included in 95% of reported deals. Working capital is the most common...
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Sandbagging Provisions

Published by Bloomberg Law
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, and more often, the parties are deciding instead to be silent on the issue of sandbagging. Introduction...
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Stand-Alone Indemnities

Published by Bloomberg Law
Market Trends: What You Need to Know According to the American Bar Association's eight 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 study to 95% in 2019. This article examines the...
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Target Counsel Legal Opinions

Published by Bloomberg Law
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. Though they were not long ago a common closing condition, target legal opinions have pretty much gone...
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The ‘Materiality Scrape’ Provision

Published by Bloomberg Law
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 something near-ubiquitous in M&A purchase agreements, now included in 93% of transactions...
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Trends in M&A Provisions: Disclosure Schedule Updating

Published by Bloomberg Law
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 agreements are staying silent on the point. In addition, where disclosure schedule updating is contemplated...
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Evolving Private Company M&A Considerations in the COVID-19 Era

Introduction 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. This article identifies some of the higher-level, pandemic-related considerations evolving in the private company...
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COVID Impact as a Standalone Indemnity in M&A Transactions

Introduction The COVID virus has ushered in unprecedented and challenging times for our country and the global community. From the deeply personal pain and suffering caused by the virus as a health pandemic to behavioral adjustments in the consumer population at large (“social distancing,” etc.), to every day, but very...
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COVID and M&A Earnouts

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 in the consumer population at large (“social distancing,” etc.), to our everyday routines, burdens...
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Crain's Ask the Expert: Exploring the M&A Landscape

Click Here to View the Original PDF from Crain's New York 2019 was a busy year in the mergers and acquisitions world, with both private equity firms and strategic buyers looking for deals in an environment shaped by tax reform, a looser regulatory climate and increased cash reserves at...
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A Toolkit for Directors & Officers of US Companies Amid COVID-19

The current COVID-19 crisis has rapidly re-shaped everyday life around the world, and our understanding of the impact this disruption to daily interactions and routines has had on business is constantly evolving. While much attention has been given to the effects on the economy and the stock markets, as...
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M&A Trends: COVID-19 As A Material Adverse Change

As COVID-19 has proliferated throughout the United States, the resulting health-related government actions - in the form of school and business closures, emergency declarations, shelter in place requirements and the like - along with the behavioral adjustments in the consumer population at large (“social distancing,” etc.) continue to have...
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Ten Things You Need to Know About Force Majeure Now

In the social and economic fallout from the Coronavirus, businesses are assessing how best to address their commercial relationships, especially where potentially insurmountable barriers to performance loom large.  One clause that concerns performance impossibility has gained increasing recognition in this crisis.  “Force majeure” contract clauses long have existed in...
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The Sandbagging Conundrum Explained

There is perhaps no more consistently vexing problem for transactional attorneys on opposite sides than figuring out a fair contractual resolution for “sandbagging” issues. Sandbagging typically occurs when the buyer of a business learns that a seller will be in breach of a contractual representation when the deal closes...
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Trends in M&A Provisions: 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 seller with respect to the target company. [i] The scope and detail of these representations and warranties are often heavily negotiated...
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Trends in M&A Provisions: After-Tax Indemnity Limitations

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 covenants, along with related indemnification obligations. [2] One issue often negotiated is whether the amounts recoverable as indemnified damages should be calculated on an...
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Trends in M&A Transactions: Separate Escrows for Purchase Price Adjustments

In mergers and acquisitions (“M&A”) transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains provisions for post-closing purchase price adjustments . [2] Generally, these adjustments are intended to reconcile changes in the target’s financial condition as of the transaction’s closing (usually...
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Trends in M&A Provisions: Earnout Provisions

In merger and acquisition (“M&A”) purchase agreements (whether asset purchase agreement, stock purchase agreement, or merger agreement), provisions addressing the purchase price, and how it is to be paid, are, understandably, amongst the most critical to get right. The price to be paid to acquire the target [1] can...
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Trends in M&A Provisions: Alternative Dispute Resolutions Provisions

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 covenants, along with related indemnification obligations. The purchase agreement may also stipulate certain agreed upon non-judicial means for dealing with claims under the agreement...
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Trends in M&A Provisions: Exclusion of Consequential Damages

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 and related indemnification covenants. [2] Buyers and sellers often negotiate the scope and types of damages subject to indemnification under the purchase agreement, including...
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Trends in M&A Provisions: Insurance Reduction Provisions

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 covenants, along with related indemnification obligations. [2] One common limitation to the parties’ indemnification obligations seeks to reduce the amount that the indemnified party may...
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Trends in M&A Provisions: Express Non-Reliance Provisions

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 covenants, along with related indemnification obligations. An M&A purchase agreement includes representations from the seller to the buyer and the buyer to the seller. [ii] However...
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Trends in M&A Transactions: Use of Knowledge Qualifiers for Representations and Warranties

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. [ii] The scope and detail of these representations and warranties are often heavily negotiated and tailored to reflect both the nature of the target and...
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