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
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
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
You know that post I did about a recent English opinion on warrants (here)? Well, Glenn West, a partner at Weil whose name appears regularly on this blog, did a blog post about it too (here). Here’s the bit that caught my attention: This author’s consistent position on this subject is to continue to bow to current market convention in … Read More
You might find of interest The Inefficient Evolution of Merger Agreements, a law-review article by two law-school professors, Robert Anderson and Jeffrey Manns. (You can get a PDF copy here.) The authors did something that is still relatively novel when it comes to study of contract drafting—they engaged in empirical research. Specifically, they used computer textual analysis to analyze 12,000 public-company merger agreements … Read More
Starting at 13.364, MSCD considers the elements that go into a definition of the defined term Knowledge. One element that discussion doesn’t include is the possibility of Knowledge being defined to include information that the person in question should have known. That’s knows as “constructive knowledge,” and it features in the following definitions exhumed from the potter’s field EDGAR. “Knowledge” … Read More
You remember my book The Structure of M&A Contracts? Yeah, that one. It was published in 2011, ebook only, using Thomson Reuters’s Proview platform. But for reasons that I never quite understood and would rather not dwell on, buying it was a nightmare. Every month or two I would receive an email from someone who had tried to buy it … Read More
You might have seen my post earlier today about my book The Structure of M&A Contracts. In writing it, I was reminded that a few years ago I did a public seminar based on the book. And I did a seminar at a law firm. Heck, I even did a webcast. But I quickly dropped the seminars. What’s great about my “Drafting … Read More
Remember my M&A book? You know, The Structure of M&A Contracts? Yeah, it slips my mind too. Because it’s available only in a proprietary ebook format, and because buying it can be a hassle, it sometimes feels as if it was never published. But it turns out that people are in fact buying it, and reading it. Recently I heard from some … Read More
I noted with interest this post on ContractsProf Blog by @StaceyLantagne. It’s about one of the lawsuits prompted by the ruling that Apple had engaged in anticompetitive price-fixing in ebooks. The opinion is DNAML Pty, Ltd. v. Apple Inc., No. 13CV6516 (DLC), 2015 WL 9077075 (S.D.N.Y. Dec. 16, 2015) (PDF here). In it, the court held that the plaintiff lacked the standing to … Read More
