Explore the complexities of post-acquisition contract consents through an insightful case study on a high-stakes $80 million acquisition. This blog post delves into the challenges faced when key business value is linked to contracts requiring third-party consent, as exemplified by a contentious dispute involving a major account. Learn about the legal intricacies and the critical importance of due diligence and precise contract terms in M&A transactions. Discover how unforeseen issues can impact settlement and litigation, offering valuable lessons for buyers and sellers alike.
M&A Stories
September 10, 2024
M&A buyers favor asset acquisitions for the flexibility to select which seller liabilities to assume. However, significant complications can arise when key business value is tied to contracts that cannot be assigned without the other party’s consent.
Such was the situation in an $80 million strategic acquisition in 2021 involving a cleaning division with 600 customers. The seller promised to help transition by securing consents from ten critical accounts. If these consents were obtained within a specified timeframe, the seller stood to receive additional payments.
One crucial account was Ingram Micro. If consent for Ingram Micro was secured by the deadline, the seller would receive $1.5 million from escrow. Although consent was obtained on time, the seller later discovered that half of the Ingram Micro account’s revenue had been transferred to a third party. The Ingram Micro contract, which allowed termination with 30 days’ notice, was indeed terminated by the third party due to its own cleaning vendor.
Consequently, the buyer refused to release the $1.5 million. The seller settled for $747,000 for the Ingram Micro consent, but the buyer continued to withhold these funds from escrow, citing indemnification issues. The dispute eventually led to litigation in the Delaware Superior Court. The seller sought the release of the $747,000 through a summary judgment motion.
The buyer contended that despite the timely consent, there was still a dispute over the total amount recoverable, arguing that the seller had breached the asset purchase agreement by not disclosing issues with the Ingram Micro account prior to closing. The court denied the seller’s motion for summary judgment, leaving the resolution of the dispute to further legal proceedings.
This case underscores that even with thorough document drafting, unforeseen issues can arise post-closing, highlighting the importance of due diligence and clear contractual terms.
Case Reference: JanCO FS 2, LLC v. ISS Facility Services, Inc., C.A. Nos. N23C-03-005 MAA CCLD, N23C-07-036-MAA CCLD , Superior Court of Delaware, (August 30, 2024).
Thank you for reading this blog. If you have any questions, insights, or if you’d like to engage in a more detailed discussion on this matter, I invite you to reach out directly.
Feel free to send me an email. I value thoughtful discussions and am always open to connecting with business owners, management, as well as professionals who share an interest in the complexities of M&A law.
By John McCauley: I write about recent legal problems of buyers and sellers of small businesses.
Email: jmccauley@mk-law.com
Profile: http://www.martindale.com/John-B-McCauley/176725-lawyer.htm
Telephone: 714 273-6291
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Check out my books: Buying Assets of a Small Business: Problems Taken From Recent Legal Battles and Selling Assets of a Small Business: Problems Taken From Recent Legal Battles
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