M&A Drafting: Double Materiality Doesn’t Exist

I’ll now revisit something I last wrote about in 2013: double materiality. Here’s a statement of fact (in the language of the Ancient Ones, a “representation and warranty”) and the associated bringdown condition, neither qualified by materiality: The Seller’s financial records contain no inaccuracies. The Buyer’s obligation to consummate the transaction contemplated by this agreement is subject to satisfaction of … Read More

M&A Drafting: Here’s a Clearer Way to Modify the Bringdown Condition by MAE

A couple of months ago I did this blog post about the redundant reference-point exception in the bringdown condition. Today we revisit the bringdown condition to consider an issue involving how the bringdown condition is modified by materiality. The bringdown condition allows one side to use inaccuracy in the other side’s statements of fact (traditionally referred to as representations and … Read More

How Statements of Fact and Preclosing Obligations Relate to Conditions to Closing

With some trepidation, I now tiptoe into law-and-economics territory. Specifically, how standards for statements of fact and preclosing obligations in mergers-and-acquisitions contracts relate to standards for conditions to closing. Widgetco and Acme (both private companies) enter into a contract under which Widgetco would acquire Acme. The contract provides for a delayed closing. Acme makes a statement of fact in the … Read More

A Humdinger of an Opinion from the Delaware Chancery Court: AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC

If you’re weary of the shitshow, I suggest you check out the work of an exemplary public servant—the Delaware Chancery Court opinion by Vice Chancellor Laster in AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC (here), issued on 30 November 2020. It’s another epic Laster opinion, weighing in at 242 pages. The dispute involves the proposed purchase of … Read More

Some Thoughts on Akorn v. Fresenius

I recently mentioned in this post that my works were cited liberally in the Delaware Chancery Court’s high-profile opinion in Akorn, Inc. v. Fresenius Kabi AG (PDF here). I’ve now had occasion to look through the opinion; here are some thoughts. They reflect my interests: you can find no end of commentary if instead you’re interested in the broader implications of … Read More

The Table of Contents of “The Structure of M&A Contracts”

File this under “Better late than never.” Today a reader told me they couldn’t find online anywhere the table of contents of my book The Structure of M&A Contracts. That was an oversight on my part, so here it is. For more about the book, go here. If you can tolerate the extra hoops you have to jump through, I … Read More

Kirkland Said WHAT About the “Successors and Assigns” Provision?

Here’s how a recent Kirland M&A Update (here; another version is here) begins: Most commercial and corporate contracts provide that the agreement is binding on a party’s “successor and assigns”. This boilerplate clause, coupled with the legal consequences of a stock purchase or merger, covers most corporate transaction scenarios and ensures that the agreement remains with, and binding on, the … Read More

Wolters Kluwer’s “M&A Clause Analytics”

I noticed this post by Richard Tromans on a new Wolters Kluwer product called M&A Clause Analytics. Here’s some of what Richard says: In terms of what the system actually does, Wolters Kluwer explains that it has the ability to compare an entire document or single clause against the market standard and then provides practical guidance about those clauses and … Read More

Revisiting Use of the Phrase “Definitive Agreement”

Here from EDGAR are instances of use of the phrase definitive agreement in a contract: The Company shall have ten (10) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Investor … Read More