Search Results for: earnouts
Earnouts: Del. Chancery Addresses Damages Calculation [June 16, 2025]
For an M&A blogger, the earnout litigation following Alexion Pharmaceuticals’ 2018 acquisition of Syntimmune is one of those gifts that keep on giving. We’ve already blogged about Vice Chancellor Zurn’s 2021 decision to deny Alexion’s motion to dismiss the case and her 2024 post-trial opinion finding that Alexion had breached its obligations under the earnout […]
M&A Agreements: Allocating Tariff Risks [April 21, 2025]
With the uncertainties surrounding US tariff policies likely to continue for some time, parties to acquisition agreements need to determine how to allocate the risks associated with tariffs in those agreements. This recent BakerHostetler memo identifies possible approaches to that process. Here’s an excerpt from the memo’s discussion of how reps and warranties can be […]
Life Sciences Earnouts: Legal and Science Teams Must Closely Collaborate [February 20, 2025]
A recent Chancery Court decision, Pacira Biosciences, Inc. et al. v. Fortis Advisors LLC (Del. Ch.; 1/25), addressed a very specific life sciences earnout issue — whether the contract tied the earnout payment to a national CMS (Centers for Medicare and Medicaid) reimbursement rate or a locality-adjusted reimbursement rate. The Court held that the agreement […]
Earnouts: Del. Chancery Says Contract Language Fatal to Seller’s Claims [November 5, 2024]
Last week, the Chancery Court dismissed a variety of contract and tort claims arising out of a dispute over a buyer’s compliance with the terms of an asset purchase agreement. Now, before we dive into the substance of the case, I want to tell you a few things about this case and then ask you […]
Earnouts in Life Sciences M&A: Consider These Tips [October 28, 2024]
As this Cooley M&A blog notes, earnouts are a much more common — and high-stakes — feature of life sciences M&A deals than non-life sciences deals, which only included an earnout 21% of the time according to SRS Acquiom’s 2023 Life Sciences M&A Study. They also lend themselves to interpretive disagreements. Vice Chancellor Laster once […]
Deal Lawyers Download Podcast: SRS Acquiom M&A Claims Study [October 18, 2024]
In our latest Deal Lawyers Download Podcast, SRS Acquiom’s Kip Wallen joined me to discuss the firm’s 2024 M&A Claims Study. We addressed the following topics in this 15-minute podcast: – Trends in the number and size of post-closing indemnification claims – How claims trends differed for deals with R&W insurance – Why tax claims […]
Earnouts: Parsing Two Objective ‘Commercially-Reasonable Efforts’ Definitions [October 4, 2024]
This Sidley blog compares and contrasts two recent Chancery Court decisions — Shareholder Representative Services. LLC v. Alexion Pharmaceuticals, Inc. and Himawan v. Cephalon, Inc. — both involving acquisitions of development-stage biotech companies and both interpreting an earnout provision’s objective or outward-facing definition of “commercially reasonable efforts.” Interestingly, both buyers were later acquired by larger pharma companies. […]
Post-Closing Disputes: 2024 M&A Claims Study [September 26, 2024]
SRS Acquiom recently published its 2024 M&A Claims Study, which analyzes more than 850 private target acquisitions with escrows that were fully released during the period from Q3 2022 to Q2 2024. The data set includes 518 individual indemnification claims and nearly 200 earnouts. Here are some of the key takeaways from the study: Indemnification […]
Earnouts: “Outward Facing” Efforts Clause Snares Buyer [September 9, 2024]
There must be some kind of end of summer clearance sale for earnout litigation going on in Delaware, because over the past month or so, the Chancery Court has addressed earnout issues on no fewer than four occasions. The Court’s latest earnout decision is Shareholder Representative Services v. Alexion Pharmaceuticals, (Del. Ch. 9/24), which arose […]
Earnouts: High Stakes ‘Robot Wars’ Not Permitted by Efforts Provision [September 5, 2024]
Yesterday, the Delaware Chancery Court issued its post-trial memorandum opinion in Fortis Advisors v. Johnson & Johnson (Del. Ch.; 9/24) finding that J&J violated its earnout obligations in the merger agreement to acquire Auris Health. As John blogged at the motion to dismiss stage, the Chancery Court hears a lot of earnout cases, but very […]
Earnouts: Chancery Decision Offers Tips for Drafting Acceleration Provisions [September 4, 2024]
In late August, the Chancery Court declined to dismiss claims a buyer breached an SPA by failing to make certain earnout payments. At issue in Medal v. Beckett Collectibles (Del.Ch.; 8/24) was whether the earnout payments had been accelerated under the terms of the SPA. Here’s the background from this Fried Frank memo: Section 2.05(b) […]
Earnouts: Unusually Buyer-Friendly Language Defeats Plaintiff’s Claims [August 1, 2024]
In Fortis Advisors v. Medtronic Minimed, (Del. Ch.; 7/24), the Delaware Chancery Court dismissed claims by a sellers’ representative that the buyer wrongfully deprived the target’s former stockholders of a $100 million contingent milestone payment. The Court rejected the plaintiff’s claims based on the earnout provision’s unusually buyer-friendly language concerning the buyer’s obligations with respect […]
Earnouts: Drafting Tips to Avoid Disputes [July 11, 2024]
Earnouts are perhaps the most contentious of deal terms, and over the years, disputes about earnout provisions have provided us with a rich source of blog topics. Despite all the problems with them, earnouts continue to be a popular tool for bridging valuation gaps. If you’re thinking about incorporating an earnout into a deal you’re […]
The Rise of Minority Investments for PE & Strategics [June 27, 2024]
A recent Womble Bond Dickinson memo says that private equity funds and strategic investors are increasingly interested in taking minority positions in target companies. This excerpt discusses private equity funds’ rationale for this move and its implications: Financial investors, particularly private equity firms, regularly rely on debt to extend their reach and enhance their return […]
Deal Lawyers Download Podcast: SRS Acquiom Annual M&A Deal Terms Study [May 29, 2024]
In our latest Deal Lawyers Download Podcast, SRS Acquiom’s Kip Wallen joined me to discuss his firm’s 2024 M&A Deal Terms Study. We addressed the following topics in this 16-minute podcast: – Trends in private deal buyers and size & type of consideration – Valuations and financial terms of 2023 transactions – The rise in earnouts […]
Study: Private Target Deal Terms [May 3, 2024]
SRS Acquiom recently released its annual M&A Deal Terms Study for 2024 (available for download). This year, SRS Acquiom analyzed more than 2,100 private-target acquisitions that closed from 2018 through 2023. Here are some of the key findings summarized in the introduction: – Strategic buyers (both U.S. public and private) were more active in 2023, with […]
DE Chancery: “Commercially Reasonable” Doesn’t Require Actions Beyond Buyer’s Self-Interest [May 1, 2024]
Himawan v. Cephalon, Inc. (Del. Ch.; 4/24) presents a familiar fact pattern in life-sciences M&A. The target biotech company was developing one main asset for two possible indications. In its acquisition by Cephalon, its stockholders were entitled to “milestone” payments tied to regulatory approval of the asset for those indications. The merger agreement left the […]
Earnouts: Delaware Courts More Often Siding with Sellers [November 20, 2023]
This Fried Frank memo calls out a “new trend” in Delaware earnout decisions: Most earnout litigation has focused on whether the buyer has breached its general efforts obligations, or any specific covenants, with respect to its running of the business during the earnout period. Historically, in most cases, the court has found in favor of […]
When Earnouts Are Ambiguous: The Importance of a Good Record [November 14, 2023]
John has blogged previously about the renewed reliance on earnouts in today’s uncertain environment. In fact, this Freshfields blog states that “one recent study found that the use of earnouts in U.S. private M&A deals in 2022 was higher than in any year since 2017.” But, as the blog notes, with more earnouts comes more […]
Earnouts: Negotiating Buyer’s Post-Closing Obligations [November 8, 2023]
Earnouts are particularly popular as a tool for bridging valuation gaps in life sciences deals. This Hogan Lovells memo provides an overview of some of the key considerations for buyers in those deals when negotiating their obligations under an earnout provision. This excerpt addresses the alternative standards that may apply to the efforts that will […]
Earnouts: Del. Chancery Refuses to Re-Write Contract Terms Once Again [September 29, 2023]
This week in AECOM, et al. v. SCCI National Holdings, Inc., (Del. Ch.; 9/23), the Chancery Court declined a buyer’s request to re-write the terms of a purchase agreement and dismissed its claim that the agreement’s earnout provisions should be reformed based on the doctrine of mistake. The buyer asserted fraud claims arising out of […]
Contingent Value Rights: Key Components & Trends [May 24, 2023]
Contingent Value Rights, or CVRs, are the public company analog of an earnout, and like earnouts are a tool for bridging valuation gaps between buyers and sellers. This Sidley memo reviews all announced public transactions from January 1, 2018 through April 30, 2023 that included CVRs as part of the considerations, and identifies the key […]
Study: Private Target Deal Terms [May 1, 2023]
SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial & other terms of 2,100 private-target acquisitions valued at more than $460 billion that closed between the beginning of 2017 and the end of 2022. Here are some of the key findings about trends in last year’s deal terms: – Transaction values […]
M&A Litigation: Valuation Issues in a Volatile Market [April 18, 2023]
Yesterday, I blogged about how buyers and sellers in private equity deals are addressing valuation gaps. Today, it’s time for the litigators’ perspective. This Proskauer blog says that the turbulent market conditions that create valuation gaps also create litigation over valuation issues. Here’s an excerpt: Valuation disputes tend to be centered on disagreements about accounting […]
Private Equity: Managing Valuation Gaps in a Tough Market [April 17, 2023]
The macroeconomic headwinds that dealmakers faced in 2022 have carried over into this year, and the recent unpleasantness in the banking sector threatens to make deal financing terms even tighter. Not surprisingly, this environment has caused private equity firms to find ways to bridge valuation gaps in order to get deals done. According to this […]
Bridging Valuation Gaps in Life Science Deals Through Spin-Offs & CVRs [March 15, 2023]
Life science targets with clinical or near-clinical products often come with early-stage pipeline assets, the value of which is dependent on the achievement of a development or milestone that remains uncertain. The target may see great potential in these pipeline assets, but large pharma buyers who are primarily interested in the clinical assets are often […]
Non-Competes: More on FTC Proposal’s Implications for M&A [January 20, 2023]
I blogged last week about the FTC’s proposed rules banning most non-compete agreements & the limited exception that it provides for non-competes entered into in connection with the sale of a business. This Hunton Andrews Kurth memo takes a broader look at the implications for M&A if the FTC adopts the rules in their current […]
Earnouts: Reducing the Risk of Disputes Over Milestone Payments [July 18, 2022]
“Milestone” payments are a common feature of life science deals, both public & private. Whether you’re dealing with a contingent value right in a public company acquisition, an earnout in a private company deal or a milestone payment in a licensing agreement, it’s important to draft these provisions to minimize the risk of litigation. It’s […]
Earnouts: Del. Chancery Interprets Undefined “Commercial Best Efforts” Clause [July 7, 2022]
In many cases in which the meaning of an “efforts clause” governing the buyer’s conduct with respect to the achievement of earnout payment milestones has been an issue, the Chancery Court has had contractual language defining the standard to work with. But agreements don’t always define what “best efforts”, “commercially reasonable efforts” or alternative terms […]
Deal Lawyers Download Podcast: SRS Acquiom M&A Deal Terms Study [July 6, 2022]
Our new Deal Lawyers Download podcast features my interview with SRS Acquiom’s Chris Letang & Kip Wallen about the company’s most recent annual M&A Private Target Deal Terms Study. Topics addressed in this 17-minute podcast include: – Methodology and notable trends identified in the study – Changes in the prevalence and terms of earnouts – The […]
Study: Private Target Deal Terms [May 16, 2022]
SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial & other terms of 1,900 private-target acquisitions valued at more than $425 billion that closed between 2016 and 2021. Here are some of the key findings about trends in last year’s deal terms: – The market appears to be settling on how […]
Lessons for Sellers From the Wordle Deal [February 25, 2022]
I think I may be the last person in America – or at least the last one on social media – who hasn’t succumbed to the Wordle craze. That’s not unusual – as my kids are fond of telling me, my pop culture references are generally about 20 years behind the times. Anyway, since the […]
Earnouts: Del. Chancery Refuses to Dismiss Fraud & Implied Covenant Claims [December 20, 2021]
The Delaware Chancery Court hears a lot of earnout cases, but very few have financial stakes as large as those involved in Vice Chancellor Will’s recent decision in Fortis Advisors v. Johnson & Johnson, (Del. Ch.; 12/21). The litigation arose out of the 2019 acquisition of medical device manufacturer Auris Health by J&J’s Ethicon subsidiary. […]
Earnouts: Drafting Tips from the Del. Chancery [November 22, 2021]
This Fried Frank memo takes a look at tips for drafting milestone languages in earnout provisions from the Chancery Court’s decisions in Shareholder Representative Services v. Shire, (Del. Ch.; 10/20) and Pacira Biosciences v. Fortis Advisory, (Del. Ch.; 10/21). This excerpt summarizes the key drafting lessons to be derived from the decisions: – Based on […]
Earnouts: An Overview [November 12, 2021]
Houlihan Lokey has put together this presentation providing an overview of earnouts. If you have a deal where an earnout might be on the table, it’s worth taking a look at and sharing with any client who isn’t familiar with the objectives, potential benefits & downside risks of an earnout provision. Because I’m an earnout […]
Earnouts: Del. Chancery Says “Commercially Reasonable Efforts” Must be Persistent [September 9, 2021]
I thought a recent Chancery Court order interpreting what a “commercially reasonable efforts” clause in an earnout provision requires was worth noting. In Shareholder Representative Services v. Alexion Pharmaceutical, (Del. Ch.; 9/21), the Chancery Court was confronted with a buyer that had committed to use commercially reasonable efforts to enable the target to meet contractual […]
Fraud: Integration Clause Bars Claims Based on “Future Promises” [June 22, 2021]
Earlier this month, I blogged about the Albertsons case, in which Vice Chancellor Slights held that allegations that the buyer had breached contractual obligations not to take actions intended to avoid payment of an earnout were sufficient to withstand a motion to dismiss. The plaintiff also brought a fraud claim premised on the buyer’s alleged […]
Earnouts: Buyer’s Discretionary Authority Doesn’t Bar Claim [June 10, 2021]
When negotiating an earnout, buyers typically resist efforts to tie their hands when it comes to operating a business post-closing. Frequently, the contract expressly gives the buyer discretion with respect to decisions relating to post-closing operations. That can be a formidable obstacle for a seller to overcome when in earnout litigation, but the Chancery Court’s […]
Study: Private Target Deal Terms [May 17, 2021]
SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial & other terms of 1,400 private target deals that closed during the period from 2015 through 2020. Here are some of the key findings about trends in last year’s deal terms: – There was a significant increase in the percentage of […]
Earnouts: Del. Chancery Refuses to Re-Write Contract Terms [May 13, 2021]
In Obsidian Finance Group v. Identity Theft Guard Solutions, (Del. Ch.; 4/21), Vice Chancellor Slights held that a seller was not entitled to an earnout payment that was contingent upon a six-year extension of a U.S. government contract. The seller claimed that it was entitled to payment even though an extension of that duration hadn’t […]
Earnouts: Still Popular – And Still Problematic [February 19, 2021]
Earnouts have long been a popular tool for bridging valuation gaps, and they’ve been particularly popular in life sciences transactions. A recent Cooley blog reviewing 2020 M&A in the life sciences sector says that they remain both very popular among dealmakers in this sector – and very problematic: Earnouts continue to be popular methods for […]
Post Closing Disputes: The Locked Box Alternative [January 29, 2021]
This Grant Thornton report looks at some of the leading causes of post-closing disputes in M&A transactions and provides insight into how to prevent them. The report surveyed deal professionals & found that the top areas of post-closing disputes were working capital adjustments, earnouts, and debt price adjustments. According to the report, using a locked […]
Post-Closing Adjustments: Covid-19 Issues [December 4, 2020]
This SRS Acquiom memo addresses some of the more novel post-closing scenarios that have arisen in M&A transactions as a result of the Covid-19 pandemic. Here’s an excerpt on some of the issues associated with the NOL carryback provisions of the CARES Act: One of the many ways the Coronavirus Aid, Relief and Economic Security […]
Covid-19 Uncertainties: The Stock-for-Stock Alternative [October 13, 2020]
The market volatility and business uncertainties resulting from the pandemic have made harder for potential buyers and sellers to see eye-to-eye on valuation and have increased closing risk. I’ve blogged about using earnouts and other techniques to bridge valuation gaps and address certainty issues, but this Gibson Dunn memo focuses on another alternative – stock-for-stock […]
Earnouts: Best Practices for Avoiding Disputes in the Covid-19 Era [September 17, 2020]
We’ve seen a lot of insightful commentary on earnouts during the pandemic, and I’ve blogged about the topic quite a bit (here’s a recent one). The need to bridge valuation gaps is more pressing than ever in the current environment, so it’s not surprising that people are taking a hard look at earnouts & how […]
Earnouts: Structuring Considerations for the Covid-19 Environment [July 8, 2020]
This Sidley memo (pg. 2) discusses how the implications of the Covid-19 crisis may require buyers & sellers to scrutinize earnout provisions with a “new lens,” whether they are negotiating new deals or potentially renegotiating existing ones. This excerpt addresses some of the considerations associated with using a “sliding scale” earnout instead of the more […]
Beyond Earnouts: Bridging Valuation Gaps in the Current Environment [June 12, 2020]
This recent Seyfarth memo provides an overview of creative ways to bridge valuation gaps between buyers and sellers. The memo discusses earnouts, but it addresses a number of other alternatives as well. Here’s an excerpt on equity rollovers: Equity rollovers are a tool used almost exclusively by private equity buyers in platform acquisitions, and sometimes […]
Revisiting Earnouts During the Covid-19 Era [June 10, 2020]
One of the consequences of the Covid-19 pandemic is that buyers and sellers are increasingly finding themselves in situations where they need to find a way to bridge a valuation gap in order to get a deal done. One tried and true – if frequently troublesome – way of doing that is through the use […]
Study: Private Target Deal Terms [May 7, 2020]
This SRS Acquiom study reviews the financial & other terms of 1,200 private target deals that closed during the period from 2015 through 2019. Here are some of the key findings about trends in last year’s deal terms: – The median size of management carveouts, while still rarely used, grew to 11.1% of merger consideration. […]
“Let’s Make a Deal Anyway”: Bridging M&A Valuation Gaps [April 6, 2020]
The Covid-19 pandemic has seen previously sky-high M&A valuations plummet, at least for now. As a result, buyers looking to press on and do deals in this environment need to find creative ways to bridge gaps between the value at which deals can get done & what sellers believe their businesses are worth under normal […]
Earnouts: Court Rejects Claim Based on Conduct of Business Covenant [February 20, 2020]
A recent Delaware Superior Court decision provides some insight into how courts interpret contractual limitations on a buyer’s right to manage the post-closing conduct of the business when an earnout is at stake. In Quarum v. Mitchell International, (Del. Supr.; 1/20), the Court rejected a plaintiff’s claim that the defendant’s failure to take certain actions […]
January-February Issue: Deal Lawyers Print Newsletter [January 28, 2020]
This January-February issue of the Deal Lawyers print newsletter was just posted – & also sent to the printers. It takes a deep dive into issues surrounding earnouts – M&A’s “siren song.” Topics include: – An Overview of Earnouts – Prevalence of Earnouts & Common Terms – Tax & Financial Reporting Issues – When Earnouts […]
Earnouts: “Comprehensive & Explicit” Language Wins the Day for Buyer [October 29, 2019]
Earnouts are often used as a bridge to keep a deal together when the parties differ on valuation. Since that’s the case, people sometimes tip-toe around all sorts of issues relating to the terms of the earnout, including the extent of the buyer’s obligations to facilitate the achievement of milestones. As I’ve blogged previously, that’s […]
R&W Insurance: Influence on Deal Terms [October 24, 2019]
SRS/Acquiom recently issued its annual “Buy-Side R&W Insurance Deal Terms Study,” which address how the use of buy-side R&W insurance continues to influence deal terms. Here’s an excerpt with some of the highlights: – Terms that are more seller-favorable when RWI is present include the presence of non-reliance clauses (potentially because sellers typically remain liable […]
The Trouble With Earnouts [September 5, 2019]
I really like this Cooley blog, because to me it gets to the heart of the problem with using earnouts to bridge the valuation gap: Often discussed in the context of bridging a valuation gap, an “earn-out” can be a (seemingly) attractive solution for parties who have reached agreement on everything but the purchase price. […]
Study: Private Target Deal Terms [May 15, 2019]
This SRS Acquiom study reviews the financial & other terms of 1,200 private target deals that closed during the period from 2014 through 2018. Here are some of the key findings about trends in last year’s deal terms: – The median time from first investment round to exit increased to 7 years in 2019, up from […]
Earnouts: No Duty to Maximize Contingent Consideration [April 16, 2019]
The Delaware Chancery Court recently held that a buyer was not under an obligation to maximize the amount of an earnout potentially payable to the sellers subsequent to an acquisition. In Glidepath Ltd. v. Beumer Corp., (Del. Ch. 2/19), Vice Chancellor Laster held that the buyer did not breach its contractual or fiduciary obligations by acting […]
Transcript: “Earnouts – Nuts & Bolts” [March 6, 2019]
We have posted the transcript for our recent webcast: “Earnouts: Nuts & Bolts.” – John Jenkins
Earnouts: “Commercially Reasonable Efforts” Standard Keeps Claim Alive [February 14, 2019]
Our old pal the earnout – everybody’s favorite way to bridge valuation gaps – found itself back in the Delaware Chancery Court again late last year. In Himawan v. Cephalon, (Del. Ch.; 12/18), the Court refused to dismiss claims premised on allegations that the buyer breached its obligations under an earnout provision in a merger agreement. The […]
Tomorrow’s Webcast: “Earnouts – Nuts & Bolts” [February 12, 2019]
Tune in tomorrow for the webcast – “Earnouts: Nuts & Bolts” – to hear Pepper Hamilton’s Michael Friedman, Cravath’s Aaron Gruber, Fredrikson & Byron’s Sean Kearney and K&L Gates’ Jessica Pearlman – discuss the nuts & bolts of earnouts, and how to prevent this popular tool for bridging valuation gaps from becoming a post-closing albatross […]
Earnouts: Ambiguous Milestones Prevent Dismissal of Claim [September 13, 2018]
Last month, in Fortis Advisors LLC v. Stora Enso Ab, (Del. Ch.; 8/18), Vice Chancellor Slights declined to dismiss a breach of contract claim arising out of a buyer’s failure to make contractual milestone payments relating to the construction of two plants & the production of certain materials. Here’s an excerpt from this Shearman & Sterling […]
Study: Private Target Deal Terms [May 9, 2018]
This SRS Acquiom study reviews the financial & other terms of 925 private target deals that closed during the period from 2014 through 2017. Here are some of the key findings about trends in last year’s deal terms: – Earnouts in non-life sciences deals in 2017 increased significantly to 23%, while the size (relative to the closing […]
Earnouts: The Lessons of the Tutor Perini Decision [February 1, 2018]
This Fried Frank memo discusses the Delaware Chancery Court’s recent decision in Greenstar IH Rep v. Tutor Perini (Del. Ch.; 10/17) – in which the Court rejected a buyer’s efforts to avoid earnout payments based on allegations that the seller’s former CEO was providing fraudulent information to inflate those payments. Vice Chancellor Slights held that the buyer could not withhold […]
Earnouts: Yes, They Can Be Securities [July 19, 2017]
Convincing business people that an earnout can be a “security” for purposes of the Securities Act is often a challenge. Fortunately, this recent Cooley blog provides some help. Here’s an excerpt: Sellers (particularly financial investors) in private M&A transactions are increasingly seeking the right to be able to monetize their rights to contingent consideration by requesting royalty-like earn-out streams […]
Study: Private Target Deal Terms [June 21, 2017]
This SRS Acquiom study reviews the financial & other terms of 795 private target deals that closed during the period from 2013 through 2016. Here are some of the key findings about trends in last year’s deal terms: – Earnouts in non-life sciences deals in 2016 remained steady at 14%, but they were much more often based […]
Earnouts: Be Ambiguous, Get Sued. Be Explicit, Get Sued. [April 25, 2017]
Earnouts always seem like such a good idea at the time. This K&E memo is a reminder of just what a post-closing mess they frequently turn out to be. The memo looks at two recent Delaware cases – Chancellor Bouchard’s decision in Shareholder Representative Services v. Gilead Sciences (which I blogged about a few weeks ago) & Vice Chancellor Laster’s […]
Delaware Supreme Court Weighs in on Accountant Expertise for Earnouts [July 24, 2013]
John Grossbauer of Potter Anderson notes: Last week, the Delaware Supreme Court affirmed the decision of the Court of Chancery in Viacom v. Winshall. That decision confirmed a decision by BDO LLP as Resolution Accountants concerning earn-out payments from Viacom arising from the sale of Harmonix Music Systems. The Court broadly construed the authority of […]
Survey: Executive Confidence Drops Slightly for ’12 [January 5, 2012]
According to Dykema’s 2011 M&A Outlook Survey, after slowly increasing the last two years, confidence in the U.S. M&A market has dropped slightly. 26% of industry leaders believe the market will be strong during the next 12 months, down from 38% last year, while 57% are neutral on the outlook for the coming year. Looking […]
Earnouts and Joint Ventures [November 14, 2011]
From John Grossbauer of Potter Anderson: In Coughlan v. NXP, Delaware Vice Chancellor Glasscock interpreted a provision in a merger agreement by which NXP had acquired a company called Glo-Nav and agreed to certain earnout payments to former Glo-Nav stockholders. The Vice Chancellor applied the step-transaction doctrine to find that the creation by NXP of […]
2010 Canadian Private Target M&A Deal Points Study [December 15, 2010]
Jim Griffin of Fulbright & Jaworski just alerted me to the release of the ABA Business Law Section’s 2010 Canadian Private Target M&A Deal Points Study, which covers share and asset acquisitions completed during 2007, 2008 and 2009 of private targets in Canada. The differences highlighted in this study – compared with their results for […]
January-February Issue: Deal Lawyers Print Newsletter [February 4, 2010]
This January-February issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: – Now is the Time for a True Walkaway Number: Model Disclosure for Your CD&A – Our Model CD&A Walkaway Disclosure – RiskMetrics Revises Poison Pill Policy; On-the-Shelf Rights Plans on the Rise – Defining the […]