The Delaware Court of Chancery holds that the buyer of the medical device used “good faith” and “commercially best efforts” to commercialize the sellers’ medical device. M&A Stories September 29, 2022 Introduction In a recent case, the Delaware Court of…
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DELAWARE COURT RULES AGAINST MEDICAL DEVICE SELLERS’ EARNOUT CLAIM
Posted in problems with earnouts Tagged with: Commercialization efforts, Commercially best efforts, Contingent payment structure, Delaware Court of Chancery, Discontinuation of development, Earn-out payments, Earnout claim, Good faith, Legal dispute, M&A legal, Medical device sellers, Milestone payments, Patient safety concerns, Product development challenges, Verdict
Unveiling Hidden Liabilities: A Cautionary Tale in M&A
Dive into the intricate world of mergers and acquisitions with our cautionary tale, ‘Unveiling Hidden Liabilities.’ Explore the complexities of a high-stakes acquisition, where a misstep led to a $42.7 million fallout. Discover the consequences of an inadvertent email mishap,…
Posted in no pending government investigations or inquiries, representations and warranties Tagged with: Acquisition Management, Air Force Contract, asset purchase agreement, Bid Information, Business Consequences, case reference, court verdict, due diligence, Earn-out payments, Financial intricacies, Financial Targets, Government Contractor, Hidden liabilities, Legal action, Legal Jargon, M&A landscape, M&A legal, Mergers and Acquisitions, Pending Government Investigation, Supreme Court of Virginia, Suspension, Transparent communication
Recent Posts
- When Relocation Is Part of a Dealership Sale: Automaker Consent and “Good Cause”
- The Risks of Earnouts with Buyers Who Compete
- Buyer’s Forum Selection Clause Strategy Backfires in Baseball Program Acquisition
- Buyer-Friendly Earnout Provision Shields Buyer from Seller’s Claim
- Due Diligence Gives Buyers the Right to Walk Away from a Bad Deal
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- boot
- boot
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- business cards
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- buyer has no regulatory problems
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- buyer's covenants
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- buying distribution business
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- closing
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- continuity of ownership
- contracts
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- controlling shareholder fiduciary duty M&A
- copyrights
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- Covenants
- customer and supplier rep
- customer deposits
- customer list
- customer list
- damages
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- deferred closing
- Delaware
- deliberate fraud carveout
- denial of consent must be reasonable
- dental practice sale
- Description of business assets purchased
- determination of purchase price adjustment
- diminuation of value
- direct
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- director liability
- directors and officers insurance policy
- discharge in bankruptcy
- disclosure schedule
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- due diligence
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- earn outs
- earnout
- earnout as ownership interest in buyer
- EBITDA
- EBITDA
- economic loss doctrine
- employment agreement
- employment agreement
- enforce against nonparty
- enforceability of non-owner noncompete
- entire fairness
- environment representations and warranties
- environmental
- environmental problems
- environmental remediation
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- equitable estoppel
- escrow
- excluded liabilities
- excluded or retained liabilites
- exclusive remedy
- exclusivity provision
- excuse for untimely indemnification claim
- executory contracts
- extension by contract in Delaware
- extension of closing
- extra-contractual fraud
- F reorganization
- failure to make timely purchase price payment
- fair insider deal
- Family and Medical Leave Act
- FDIC approval
- federal employer liability
- federal employment discrimination liability
- federal multiemployer pension plan withdrawal liability
- federal securities fraud
- federal wage and hour violations
- fee based upon buyer debt assumption
- financial representation and warranty
- financing acquisition issues
- financing contingency
- for cause termination
- force majeure
- foreign income tax
- form over substance
- forum non conveniens doctrine
- forum selection clause
- franchise sale
- fraud
- fraud carveout
- fraud carveout
- fraud in business sale
- fraud in the inducement exception
- fraudulent concealment
- fraudulent inducement
- fraudulent intent
- fraudulent omission
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- full disclosure rep
- full disclosure rep
- further assurance provision
- further assurance provision
- governmental approval
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- Guaranty
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- handshake redemption obligation
- hinder, delay or defraud
- hiring seller's employees
- implied assumption of seller contract/liability
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- indemnification cap
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- Internal Revenue Code Section 1377 election
- investment banker/business broker
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- leases
- leases
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- material
- material contracts
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- modification as counteroffer
- multi-employer pension plan
- mutual mistake
- mutual mistake
- negligent misrepresentation
- net working capital adjustment
- New York
- no kickback or bribe rep
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- no pending government investigations or inquiries
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- No Undisclosed Liabilities
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- nonbusiness income
- nonbusiness income/sale of subsidiary
- noncompete area
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- nondisclosure agreement
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- nonsolicitation of employees and customers
- nonsolicitation of former customers
- note payment amount adjustment
- notice
- notice provision
- objection -reasonable detail
- officer duty of care
- offset or setoff provision
- offset right
- One class of stock
- oral contract
- oral copyright agreement
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- owner liability for company breach of financing deal
- Ownership of Target Law Firm File
- parol evidence rule
- patents
- payroll tax
- percentage of purchase price
- permits and certificates
- personal goodwill
- personal guaranty
- personal guaranty of company debt by selling shareholder
- personal guaranty of lease
- Personal Name
- photo or image
- piercing veil of acquisition subsidiary
- post asset purchase issues
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- pre-closing sales tax
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- prior-material-breach doctrine
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- Problems when business fails after closing
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- problems with oral M&A promises
- problems with pensions
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- problems with products liability claims
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- problems with regulatory industry acquisitions
- Problems with sale of auto dealerships
- problems with seller nondisclosure
- problems with seller's employees
- problems with seller's lender
- Problems with seller's pre-closing errors & omissions
- Problems with seller's projections
- problems with seller's real property
- problems with seller's unemployment insurance experience rating
- problems with sharing tax benefits
- problems with subordination rights
- problems with successor liability
- problems with taxes
- Problems with typos
- product line exception
- projections
- projections
- promissory estoppel
- promissory note
- prudence
- public information exclusion
- punitive damages
- purchase agreement
- purchase price
- purchase price adjustment
- purchase price reduction
- quality of earnings assessment
- ratifying unassumed contract by post-closing action
- reasonably equivalent value
- receipt of buyer equity or security
- receipt of buyer equity or security
- receivables
- recoupment doctrine
- reformation
- reformation of contract
- reliance
- remote use of trademark out of territory
- representation and warranty about customers
- representations and warranties
- rescission
- rescission
- restrictive post-closing covenants
- retaliation
- retention bonus
- revenue and profit projections
- reverse termination or breakup fee
- Revlon doctrine
- Right of publicity
- risk of post closing payments
- royalty
- S corporation
- sale leaseback
- sale of assets of business
- sale of business to ESOP
- sale of product line
- sales order
- sales tax
- sales tax imposed on equity sale of DRE
- sales tax risk
- SBA approval re PPP loan
- scienter
- Section 1377 election
- Section 363 sale
- securing buyer's note
- securing deferred purchase price
- security agreement
- seller carried purchase price
- seller knowledge
- seller owner responsibility for underreported sales tax
- seller owners equity interest in buyer
- seller ownership in buyer
- seller rep of no federal employer liability
- seller's age discrimination claims
- seller's covenants
- seller's federal injunctions
- seller's unemployment experience rating
- seller's warranty claims
- seller's workers compensation experience rating
- Selling shareholders problem with their board of directors
- severance benefits
- sexual harassment
- shareholder approval of deal
- shareholder buyout of partner
- shareholder personal guaranty of target lease
- shareholder release
- sharing transaction tax deduction benefits
- sick time
- signing LOI with revisions by signer
- specific performance
- state and local tax
- state approval of nonprofit hospital
- state franchise/income tax
- statute of frauds
- statute of limitations
- stay bonus
- step-down provision
- stock purchase agreement
- stock sale
- strategic acquisition
- strategic acquisition
- structure of transaction
- subordination
- substance over form
- substantially all assets
- success fee
- successor liability
- sufficiency of assets rep
- supply problems
- survival of covenants
- survival of reps and warranties
- tangible net worth
- target's stock options
- tax
- tax benefit sharing
- tax deferred reorganization
- tax penalties and additions
- Taxation
- termination of M&A agreement
- termination or breakup fee
- third party
- third party beneficiary clause
- time of the essence
- timely objection to indemnification claim
- tolling
- tolling
- tort misrepresentation in M&A
- tortious interference with prospective economic advantage
- trade secret misappropriation
- trade secret misappropriation by former seller employee
- trademark infringement
- trademarks
- transferee liability for taxes IRC Section 6901
- TRO/preliminary injunction before filing for arbitration
- tying fraud to economic loss
- typo or scriverner's error
- UCC search
- Uncategorized
- Uniform Fraudulent Transfer Act or Uniform Voidable Transfer Act
- union fringe benefits
- union liabilities
- unitary business
- unjust enrichment
- unliquidated or disputed claim
- unwanted assets
- vacation time
- valuation
- waiver of contractual provision
- waiver of jury trial
- waiver of removal to federal court
- waiver provision
- willful breach carveout
- willing buyer or procuring cause
- Withholding Post-closing payments
- working capital adjustment
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