Asset Acquisitions

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Practice Notes

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174 resources

	Title	Resource Type	Date
Practice Note: Overview
1	Acquisition Finance: Overview This Note provides an overview of financing an acquisition by debt using a loan from a bank or other financial institution and gives a description of the methods of acquiring a business.	Practice Note: Overview	Maintained
2	Asset Acquisitions Toolkit Resources to assist company counsel in asset acquisitions. For a comprehensive list of other available resources on this topic, see Topic: Asset Acquisitions.	Practice Note: Overview	Maintained
3	Asset Acquisitions: Overview An overview of the main considerations involved when buying the assets of a business.	Practice Note: Overview	Maintained
4	Asset Acquisitions: Tax Overview An overview of the tax considerations involved when buying or selling the assets of a business.	Practice Note: Overview	Maintained
5	Buying Assets in a Section 363 Bankruptcy Sale: Overview This Note discusses the section 363 sale process, the advantages and disadvantages of buying assets in a section 363 sale and strategic considerations for buyers, including due diligence, structuring the bid and the pros and cons of being the first bidder to enter the sale process. For more information on section 363 sales, see Practice Note, Key Differences in Purchase Agreements for Section 363 Sales and Timeline of a Section 363 Sale.	Practice Note: Overview	Maintained
6	Due Diligence Toolkit Resources to assist counsel in conducting due diligence in securities offerings and mergers and acquisitions.	Practice Note: Overview	Maintained
7	Environmental Law: Overview An overview of the environmental regulatory framework and the major environmental statutes that impact businesses, as well as the types of liability imposed on violators of these laws and regulations.	Practice Note: Overview	Maintained
8	Fraudulent Conveyances in Bankruptcy: Overview The Note provides a general background on the Bankruptcy Code's fraudulent conveyance law, including the elements of both an actual and constructive fraudulent conveyance action and its practical application to common business transactions and corporate governance matters. This Note also discusses the effect of a successful fraudulent conveyance action, the defenses available to transferees facing such actions brought by the bankruptcy trustee or the debtor and how the Bankruptcy Code's fraudulent conveyance law differs from state fraudulent conveyance laws.	Practice Note: Overview	Maintained
9	Hart-Scott-Rodino Act: Overview This Note provides an overview of the reporting requirements which apply to certain mergers and acquisitions under the Hart-Scott-Rodino (HSR) Act. It first considers the types of transactions that require notification and the thresholds that apply. It then summarizes the procedural processes connected with making a merger filing with the US federal antitrust agencies.	Practice Note: Overview	Maintained
10	Intellectual Property: Overview This Note provides an overview of the principal categories of intellectual property (IP) under US law and related practice considerations. It discusses copyright, patents, trade secrets, trademarks and mask works. For each of these categories of IP, the Note describes the legal authority governing protection, protected subject matter and the scope of protection, the acquisition and maintenance of rights and enforcement considerations.	Practice Note: Overview	Maintained
11	Signing and Closing M&A Transactions Toolkit A selection of core resources to assist counsel involved in the signing and closing of M&A transactions.	Practice Note: Overview	Maintained
12	US Antitrust Laws: Overview This Practice Note provides an overview and introduction to the main statutory provisions in the US, the US antitrust regulatory structure, the role of private antitrust enforcement and certain key concepts relevant to the application of US antitrust law. Antitrust analysis is highly fact specific and, while providing a useful starting point, the principles outlined in this Note are necessarily general in nature and do not address any of the subject matters discussed in detail.	Practice Note: Overview	Maintained
Practice Notes
1	"All or Substantially All" in an Asset Disposition This Note discusses what "all or substantially all" means in the context of asset dispositions, including those accomplished through a single transaction and a series of transactions.	Practice Notes	Maintained
2	A Distressed Deal Buyer's Guide This Note provides practical advice to purchasers of distressed assets in section 363 bankruptcy sales.	Practice Notes	Maintained
3	Accounting for Transaction Costs and Earn-outs in M&A This Note provides an overview of certain key financial accounting (book) and US federal income tax (tax) considerations when accounting for M&A transactions.	Practice Notes	Maintained
4	Acquiring Pharmaceutical or Medical Device Manufacturers This Note explores selected legal and compliance issues for acquirors to focus on when pursuing an M&A transaction involving a target that is a manufacturer of pharmaceuticals or medical devices. In particular, this Note reviews the preliminary goals of effective due diligence, provides guidance on key areas of the investigation and highlights some of the strategies acquirors can use to mitigate risk in these deals.	Practice Notes	Maintained
5	Acquisitions of a C-corporation versus S-corporation: Tax ... This Note compares the US federal income tax consequences for buyers, sellers and targets in taxable and tax-free acquisitions of C-corporations versus S-corporations.	Practice Notes	Maintained
6	Asset Purchase Agreement Commentary Commentary on key terms and conditions commonly found in asset purchase agreements.	Practice Notes	Maintained
7	Auctions: From the Bidder's Perspective This Note describes an auction from the bidder's perspective, including the challenges that an auction poses for the bidder, the strategies involved with preparing the bid package and an overview of the auction process.	Practice Notes	Maintained
8	Auctions: From the Seller's Perspective This note describes an auction from the seller's perspective including, the advantages and disadvantages of an auction to the seller, the differences between an auction and a single buyer transaction and an overview of the auction process.	Practice Notes	Maintained
9	Bank Mergers and Acquisitions This Note discusses the regulatory and antitrust aspects of mergers and acquisitions (M&A) in the banking industry. It analyzes the various statutes covering bank M&A transactions and the regulatory agencies responsible for approving them. It includes a full discussion of the factors taken into consideration (including anti-competitive and other banking-specific factors) when applying for approval of a bank M&A transaction.	Practice Notes	Maintained
10	Bid Process Letters This Practice Note explains the purpose and key components of a bid process letter (also known as a bid procedure letter) in an M&A auction, outlines important disclaimers and reservations to consider when drafting the letter and highlights best practices in bidding procedures.	Practice Notes	Maintained
11	Carve-out Transactions This Note highlights the key issues that arise in a carve-out transaction.	Practice Notes	Maintained
12	Confidentiality Agreements: Mergers and Acquisitions A discussion on confidentiality agreements and their principal provisions.	Practice Notes	Maintained
13	Credit Bidding in Section 363 Bankruptcy Sales This Note discusses the parameters of credit bidding in section 363 sales, the grounds on which credit bids can be attacked, intercreditor issues related to credit bidding and strategies for minimizing credit bidding risks.	Practice Notes	Maintained
14	Disclosure Schedules: Mergers and Acquisitions An introduction to disclosure schedules, including a discussion of the key drafting and reviewing considerations.	Practice Notes	Maintained
15	Drafting Arbitration Agreements Calling for Arbitration in the ... This note identifies factors that parties should consider when drafting an arbitration agreement calling for arbitration in the US.	Practice Notes	Maintained
16	Drafting and Negotiating Reverse Break-up Fee and Specific ... This Note provides strategies and drafting suggestions for reverse break-up fee and specific-performance provisions. The drafting advice in this Note will help ensure that the desired remedy for the buyer's failure to close an acquisition is accurately reflected in the acquisition agreement.	Practice Notes	Maintained
17	Due Diligence for Private Mergers and Acquisitions This Note covers what due diligence is, why due diligence is necessary, how to organize the process, what to look for and how your findings impact the transaction.	Practice Notes	Maintained
18	Earn-outs This Note discusses the use of earn-outs in private M&A transactions, including a review of their advantages and disadvantages, the various issues to consider when structuring earn-out provisions and the accounting and tax treatment of earn-out payments.	Practice Notes	Maintained
19	Exclusivity Agreements This Note explains exclusivity agreements in the context of an acquisition. It explains why exclusivity agreements are advantageous for a buyer, typical terms and conditions, common issues for the buyer and the seller, and certain fiduciary considerations.	Practice Notes	Maintained
20	Fiduciary Duties of Directors of Financially Troubled ... This Note describes the fiduciary duties of the board of directors when a company becomes insolvent or is nearing insolvency and the measures that directors can take to limit their personal liability.	Practice Notes	Maintained
21	Fiduciary Duties of the Board of Directors This Note covers the fiduciary duties of the board of directors, including a discussion of the core duties of care and loyalty and certain circumstances when the board holds heightened duties.	Practice Notes	Maintained
22	Fraudulent Conveyances: Issues and Strategies for Lenders ... This Note contains a discussion of fraudulent conveyance issues of concern to lenders and private equity sponsors in common business transactions, such as leveraged buyouts, intercorporate guaranties and dividend recapitalizations This Note also discusses the consequences of a successful fraudulent conveyance action and provides drafting and structuring strategies for limiting exposure to fraudulent conveyance liability.	Practice Notes	Maintained
23	How Antitrust Agencies Analyze M&A This Note provides an overview of how the US federal antitrust agencies analyze mergers, acquisitions and joint ventures. It principally considers the agencies' approach to analyzing transactions involving competitors, but it also looks briefly at particular considerations relating to other types of transactions. This Note reflects the release of the 2010 Horizontal Merger Guidelines.	Practice Notes	Maintained
24	In Dispute: Philadelphia Newspapers This document discusses the dispute regarding the right of the secured lenders to credit bid at a sale of their collateral conducted under a plan of reorganization and provides a summary of key issues and practical implications indicated by the litigation.	Practice Notes	Maintained
25	Information Exchange and Integration Planning in M&A ... This Note summarizes the antitrust issues surrounding the exchange of information between parties during due diligence and the negotiation of a merger, acquisition or joint venture. It also highlights issues to consider in planning the integration of merging companies.	Practice Notes	Maintained
26	Intellectual Property Rights: The Key Issues This Note discusses the main categories of intellectual property (IP) rights in the US and their management, including IP ownership, assignment and licensing. It also examines the issues that arise surrounding business transactions involving IP, including M&A and finance transactions as well as their basic tax treatment under federal law.	Practice Notes	Maintained
27	Key Differences in Purchase Agreements for Section 363 ... This Note discusses the key differences between asset purchase agreements used in section 363 sales and those used for sales outside of bankruptcy, including the different drafting and negotiating considerations involved. For more information on section 363 sales, see Practice Note, Buying Assets in a Section 363 Bankruptcy Sale: Overview and Timeline of a Section 363 Sale.	Practice Notes	Maintained
28	M&A Due Diligence: Assessing Compliance and Corruption ... A look at the need for, and methods of, assessing corruption risk in the context of mergers and acquisitions.	Practice Notes	Maintained
29	M&A in California: Key Issues and Considerations An overview of key legal issues affecting the practice of M&A in California. This Note highlights significant areas of contrast between California and Delaware law. The Note focuses on procedural issues and deal mechanics; it does not address case law on fiduciary duties.	Practice Notes	Maintained
30	Material Adverse Change Provisions: Mergers and ... This Note looks at the use of material adverse change (MAC) provisions to allocate risk in acquisition transactions and provides an overview of their typical structure and exclusions as well as relevant case law. It also discusses, from a buyer's perspective, potential modifications and supplements to a customary MAC provision.	Practice Notes	Maintained
31	No-shops and Their Exceptions This Note discusses the purpose, structure and legal constraints of no-shop provisions and their various exceptions, including fiduciary outs, window-shops and go-shops.	Practice Notes	Maintained
32	Private Acquisition Structures This Note provides an introduction to the three structures used in private acquisitions: asset acquisition, stock acquisition and merger.	Practice Notes	Maintained
33	Reverse Break-up Fees and Specific Performance A description of the remedies commonly available to a seller when an acquisition fails to close because of the buyer's breach or because of a financing failure. In particular, this Note describes the purposes, legal and business considerations of reverse break-up fees and specific performance.	Practice Notes	Maintained
34	Signing and Closing M&A Transactions An overview of the signing and closing process in M&A transactions.	Practice Notes	Maintained
35	Tax Traps in an Acquisition of a Financially Distressed Target This Note provides an overview of common tax issues that arise for buyers and sellers in acquisitions of financially distressed targets.	Practice Notes	Maintained
36	Tax-Free Reorganizations: Acquisitive Reorganizations This Note provides an overview of tax-free acquisitive reorganizations. Acquisitive reorganizations are transactions where one corporation acquires the stock or assets of another corporation.	Practice Notes	Maintained
37	Term Sheets A discussion of term sheets outlining the considerations that go into deciding whether to have them and what to include in them.	Practice Notes	Maintained
38	Using Option Structures to Reduce Buyer Risk in ... This Practice Note discusses some key issues to consider when structuring and negotiating an option to acquire a pharmaceutical company, such as purchase price, duration of the option, events triggering the option, the relevant product's development plan and antitrust and accounting implications.	Practice Notes	Maintained
39	What's Market: Earn-outs A discussion of earn-out provisions in private acquisition transactions, including links to recent deals summarized in PLC What's Market through the first quarter of 2013. This Note will be updated quarterly.	Practice Notes	31-Mar-2013
40	What's Market: Indemnification Provisions in Acquisition ... A discussion of indemnification provisions in private acquisition agreements, including links to recent deals summarized in PLC What's Market through the fourth quarter of 2012. This Note will be updated quarterly.	Practice Notes	31-Mar-2013
41	What's Market: M&A Agreements in the Aerospace and ... A discussion of key provisions in M&A agreements in the aerospace and defense industry in private acquisitions and public mergers with a particular focus on government contracts representations and warranties. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
42	What's Market: M&A Agreements in the Banking Industry A discussion of key provisions in M&A agreements in the banking industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
43	What's Market: M&A Agreements in the Healthcare Industry A discussion of key provisions in M&A agreements in the healthcare industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
44	What's Market: M&A Agreements in the Insurance Industry A discussion of key provisions in M&A agreements in the insurance industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
45	What's Market: M&A Agreements in the Oil and Gas Industry A discussion of key provisions in M&A agreements in the oil and gas industry in private acquisitions and public merger agreements. In particular it looks at representations and warranties and covenants and agreements. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
46	What's Market: M&A Agreements in the Software Industry A discussion of key provisions in M&A agreements in the software industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly. It also includes an expert Q&A with Parag Gheewala of Wilson Sonsini Goodrich & Rosati, discussing key considerations that often arise in M&A transactions in the software industry.	Practice Notes	31-Mar-2013
47	What's Market: M&A Agreements in the Telecommunications ... A discussion of key provisions in M&A agreements in the telecommunications industry in private acquisitions and public mergers. This Practice Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
48	What's Market: M&A Agreements in the Utilities Industry A discussion of key provisions in M&A agreements in the utilities industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.	Practice Notes	31-Mar-2013
49	What's Market: Purchase Price Adjustments A discussion of purchase price adjustments in private acquisition transactions, including links to recent deals summarized in PLC What's Market from the first quarter of 2013. This Note will be updated quarterly.	Practice Notes	31-Mar-2013
50	M&A in Media and Telecommunications: Key Issues and ... The media and telecommunications industries are constantly evolving as market participants attempt to predict whether the traditional distinctions between content providers, distributors and advertisers will remain intact. This uncertainty creates fertile ground for M&A transactions.	Practice Notes	01-Jul-2012
51	M&A Transactions in the Aerospace and Defense Industry ... This Note identifies key issues and considerations for M&A transactions in the highly regulated aerospace and defense industry. This Note will be updated periodically.	Practice Notes	04-Jan-2012
52	M&A Transactions in the Investment Management and ... This Note identifies key issues and considerations for each phase of an M&A transaction in the highly regulated investment management and securities industry.	Practice Notes	01-Oct-2011
Standard Documents
1	Asset Purchase Agreement (Pro-Buyer Long Form) A long-form agreement for the purchase and sale of a division or line of business of a private US corporation, drafted in favor of the buyer. This Standard Document assumes a single corporate buyer and a single corporate seller. It also assumes that the signing and closing of the transaction are not simultaneous. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
2	Asset Purchase Agreement (Pro-Buyer Short Form) A short-form agreement for the purchase and sale of certain tangible or intangible assets (other than real property, accounts receivable or equity interests in other entities) of a private US corporation, drafted in favor of the buyer. This form is not for use with the sale of all or substantially all of the assets of a business. This Standard Document assumes a single corporate buyer and a single corporate seller. It also assumes that the signing and closing of the transaction are simultaneous. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
3	Asset Purchase Agreement (Pro-Seller Long Form) A long-form agreement for the purchase and sale of a division or line of business of a private US corporation, drafted in favor of the seller. It can be used by a seller when it has control of the initial draft (such as in an auction) or as a reference when reviewing a buyer's initial draft. This Standard Document assumes a single corporate buyer and a single corporate seller. It also assumes that the signing and closing of the transaction are not simultaneous. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
4	Assignment and Assumption Agreement An assignment and assumption agreement used to transfer the seller's contractual rights and obligations to the buyer, which is delivered as an ancillary document in an asset purchase.This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
5	Bill of Sale (Asset Acquisition) Form of bill of sale used to transfer title to tangible personal property, which is delivered as an ancillary document in an asset purchase. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
6	Closing Checklist: Private Mergers and Acquisitions A closing checklist to be used in a private merger, stock or asset purchase transaction. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
7	Confidentiality Agreement: Mergers and Acquisitions A standard form of confidentiality agreement to be used in connection with an acquisition. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
8	Contribution Agreement An agreement to be used for a contribution of assets by a parent company to its subsidiary. This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
9	Due Diligence Request List: Private Mergers & Acquisitions A general legal due diligence information request list to be used in connection with the acquisition of a private company. This request list does not does not cover business due diligence (other than general financial information). This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
10	Due Diligence Summary Template: Agreements This is a due diligence summary template to be used when reviewing and summarizing agreements in the context of a merger or acquisition. This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
11	Due Diligence Summary Template: Merger and Acquisition ... This is a due diligence summary template to be used when reviewing and summarizing stock purchase, asset purchase or merger agreements as part of the due diligence review in a merger or acquisition. This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
12	Due Diligence Summary Template: Organizational Documents This is a due diligence summary template to be used when reviewing and summarizing organizational documents in the context of a merger or acquisition. This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
13	Escrow Agreement An escrow agreement to be used in connection with an M&A transaction. This agreement sets out the terms and conditions by which an escrow agent will hold and distribute the portion of the purchase price placed in escrow to satisfy certain post-closing obligations of the seller. It is drafted in favor of the buyer, but aims to be reasonable and includes provisions commonly included in many escrow agreements. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
14	Exclusivity Agreement An exclusivity agreement to be used in connection with an M&A transaction. This Standard Document has integrated drafting notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
15	Intellectual Property Assignment Agreement (Short-form) This is a standard short-form intellectual property (IP) assignment agreement for use as an ancillary agreement to a principal asset purchase agreement. This IP assignment agreement can be attached as an exhibit to the prinicpal asset purchase agreement and recorded with the US Patent and Trademark Office (USPTO) and US Copyright Office against scheduled IP applications and registrations. This Standard Document has integrated notes with important explanations and drafting tips.	Standard Documents	Maintained
16	Letter of Intent: Asset Acquisitions A letter of intent for the purchase and sale of a division or a line of business of a private US corporation, drafted in favor of the buyer. This Standard Document assumes a single corporate buyer and a single corporate seller. This Standard Document may also be referred to as a term sheet or memoranda of understanding. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
17	Memorandum: Review of Representations and Warranties in a ... A form of memorandum for in-house counsel to instruct members of the board of directors or officers of a target company on reviewing representations and warranties in a purchase agreement for an M&A transaction. The memorandum generally explains the purpose of representations and warranties, how representations are commonly qualified, how the disclosure schedules work together with the purchase agreement and the impact of representations and warranties on a transaction.	Standard Documents	Maintained
18	Officer's Certificate: Mergers & Acquisitions Form of officer's certificate (sometimes called a closing certificate) to be used in connection with M&A transactions.	Standard Documents	Maintained
19	Secretary's Certificate: Mergers & Acquisitions Form of secretary's certificate to be used in connection with M&A transactions.	Standard Documents	Maintained
20	Transition Services Agreement An agreement requiring the seller of a division or business line to provide transition services to the buyer following the closing. This Standard Document is drafted in favor of the buyer, but aims to be reasonable and includes provisions that are common to negotiated transition services agreements. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.	Standard Documents	Maintained
Standard Clauses
1	Board Resolutions of Buyer: Asset Acquisitions Resolutions of the board of directors authorizing the execution and performance of an asset purchase agreement. These resolutions are drafted as standard clauses and should be inserted into board minutes or a form of unanimous written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
2	Board Resolutions of Seller: Asset Acquisitions Resolutions of the board of directors authorizing the sale of all or substantially all of the assets of a corporation. These resolutions are drafted as standard clauses and should be inserted into board minutes or a form of unanimous written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
3	Boilerplate Clauses A selection of boilerplate clauses for corporate and commercial agreements. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
4	Manager Resolutions of Buyer: Asset Acquisitions Resolutions of the managers authorizing the execution and performance of an asset purchase agreement. These resolutions are drafted as standard clauses and should be inserted into meeting minutes or a form of written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
5	Manager Resolutions of Seller: Asset Acquisitions Resolutions of the managers authorizing the sale of all or substantially all of the assets of an LLC. These resolutions are drafted as standard clauses and should be inserted into meeting minutes or a form of written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
6	Member Resolutions of Buyer: Asset Acquisitions Members' resolutions authorizing the execution and performance of an asset purchase agreement. These resolutions are drafted as standard clauses and should be inserted into meeting minutes or a form of written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
7	Member Resolutions of Seller: Asset Acquisitions Resolutions of the members authorizing the sale of all or substantially all of the assets of an LLC. These resolutions are drafted as standard clauses and should be inserted into meeting minutes or a form of written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
8	Non-compete Provision (California) This Standard Clause provides sample language for a California-compliant non-compete provision in connection with the merger or sale of a business, including its goodwill, as authorized by Sections 16600 to 16602.5 of the California Business and Professions Code. It can be used as a stand-alone provision or incorporated into a written agreement with the seller of a business entity. This Standard Clause has integrated drafting notes with important explanations and drafting tips.	Standard Clauses	Maintained
9	Purchase Agreement: Covenant to Update the Disclosure ... A form of covenant to update the disclosure schedules to a purchase (or merger agreement). This representation may be used in connection with a private stock purchase, asset acquisition or private merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
10	Purchase Agreement: Earn-out with EBITDA Targets This Standard Clause provides for contingent earn-out payments after the closing that become payable to the seller if the target company or business in an acquisition achieves specified annual EBITDA targets. It can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
11	Purchase Agreement: Financial Statements Representation ... A form of representation and warranty in a purchase (or merger) agreement as to the quality of the financial statements of the target company. This representation may be used in connection with a private stock purchase, asset acquisition or private merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
12	Purchase Agreement: Financing Condition Also known as a financing out, this is a closing condition which permits the buyer not to close an acquisition if it is unable to obtain the necessary financing. These provisions can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
13	Purchase Agreement: Knowledge Definition Standard forms of a knowledge definition for the buyer and the seller. These definitions can be used in connection with a stock purchase, asset purchase, or private merger. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
14	Purchase Agreement: Materiality Scrape A Standard Clause to use as a materiality scrape in the indemnification section of a purchase (or merger) agreement to avoid the problem of double materiality. This Clause can be used in connection with a stock purchase, asset purchase, or private merger. This Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
15	Purchase Agreement: No-shop Provision A covenant which restricts the seller from soliciting other potential buyers after the purchase agreement is signed. This covenant can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
16	Purchase Agreement: Non-compete and Non-solicit Provision A covenant which restricts the seller and its affiliates from competing with the target company or the acquired business and from soliciting employees and customers of the target company or the buyer for a period of time after the closing. This covenant can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
17	Purchase Agreement: Termination Provision A standard termination provision that does not include the payment of a break-up or reverse break-up fee. This termination provision can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
18	Purchase Agreement: Termination and Reverse Break-up Fee ... A termination provision that includes the payment of a reverse break-up fee. This Standard Clause is drafted to limit the damages payable by the buyer to the amount of the reverse break-up fee, regardless of the reason for termination. It can be used in connection with a private stock purchase, asset purchase or merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
19	Purchase Agreement: Undisclosed Liabilities Representation ... A form of representation and warranty in a purchase (or merger) agreement as to the absence of undisclosed liabilities of the target company. This representation may be used in connection with a private stock purchase, asset acquisition or private merger. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.	Standard Clauses	Maintained
20	Standard Arbitration Clauses for the AAA, ICDR, ICC and ... A resource providing the text of and drafting notes for the standard recommended arbitration clauses of the American Arbitration Association (AAA), International Centre for Dispute Resolution (ICDR), International Chamber of Commerce (ICC) and the United Nations Commission on International Trade Law (UNCITRAL).	Standard Clauses	Maintained
21	Stockholder Resolutions of Seller: Asset Acquisitions Resolutions of the stockholders authorizing the sale of all or substantially all of the assets of a corporation. These resolutions are drafted as standard clauses and should be inserted into meeting minutes or a form of written consent. This Standard Clause has integrated notes with important explanations and drafting tips.	Standard Clauses	Maintained
Checklists
1	Asset Acquisition Checklist A Checklist outlining the steps in an asset acquisition of a private company, including process and structure considerations, preliminary agreements, due diligence, the asset purchase agreement and pre-closing, closing and post-closing matters.	Checklists	Maintained
2	Auction Timeline A timeline highlighting the various stages of an auction.	Checklists	Maintained
3	Best Practices in Bid Procedures Checklist A Checklist highlighting best practices and important issues to consider when designing bid procedures in an auction.	Checklists	Maintained
4	Closing Private M&A Transactions Checklist This Checklist summarizes the key steps that need to be taken and the issues that need to be considered when preparing a private M&A transaction for closing. This Checklist is not intended to be exhaustive. It covers those steps and issues that are common to most private M&A transactions. There may be additional steps or issues depending on the complexity of a particular deal.	Checklists	Maintained
5	Confidentiality Agreements for M&A Transactions: A Checklist ... A Checklist of issues that parties negotiate, and the objectives that each side may seek, in a typical one-way confidentiality agreement used in connection with an M&A transaction.	Checklists	Maintained
6	Corporate and LLC Consents Required for Mergers and ... This Checklist summarizes the consent requirements for corporations and limited liability companies involved in M&A transactions.	Checklists	Maintained
7	Drafting and Negotiating Exclusivity Agreements Checklist This Checklist sets out the key sections of an exclusivity agreement and lists negotiating points for both the buyer and the seller in connection with an M&A transaction.	Checklists	Maintained
8	IP Due Diligence Issues in M&A Transactions Checklist A Checklist of what to look for and what questions to ask when conducting intellectual property due diligence in connection with an M&A transaction.	Checklists	Maintained
9	Key Negotiating Points in Private Acquisition Agreements ... There are certain provisions that are negotiated in almost all private acquisition agreements. This chart highlights those provisions and compares the key points that each of the parties should consider when drafting and negotiating.	Checklists	Maintained
10	Negotiating M&A Engagement Letters Checklist This Checklist sets out the most important sections of a financial advisor engagement letter and lists negotiating points for both the buyer and the advisor in connection with an M&A transaction.	Checklists	Maintained
11	Negotiating M&A Escrow Agreements Checklist This Checklist sets out the key negotiated issues between a buyer and seller in an escrow agreement entered into in connection with an M&A transaction. It also outlines the main issues often raised by escrow agents.	Checklists	Maintained
12	Private Mergers and Acquisitions Due Diligence Checklist This is a due diligence checklist for buyer's counsel of what to look for and what questions to ask when conducting corporate due diligence in private mergers and acquisitions.	Checklists	Maintained
13	Timeline of Chapter 11 Cases by Type A timeline showing the stages of the various types of Chapter 11 cases.	Checklists	Maintained
14	Timeline of a Section 363 Sale A timeline showing the typical progression of a section 363 sale. For more information on section 363 sales, see Practice Notes, Buying Assets in a Section 363 Bankruptcy Sale: Overview and Key Differences in Purchase Agreements for Section 363 Sales.	Checklists	Maintained
Articles
1	Due Diligence of Supply Chain Contracts in M&A Transactions This Article provides guidance about some of the key issues to be aware of when conducting due diligence or document review of the target's supply chain contracts in an M&A transaction. It does not present a comprehensive list of all supply chain contract due diligence issues.	Articles	05-Apr-2013
2	2012 Survey of Private Company Purchase Price Adjustments Purchase price adjustments continue to remain a major component of private M&A transactions. In a recent survey conducted by Jorge Freeland, Jonathan Mann and Jonathan Picard of White & Case LLP, detailed information was gathered to identify trends in the drafting of purchase price adjustments in 2012. In this article, the authors review some of the key findings from their survey and outline the most prevalent practices for purchase price adjustment drafting in 2012.	Articles	01-Apr-2013
3	2011 Survey of Private Company Purchase Price Adjustments This Article examines private company purchase agreements that were publicly filed in 2011 to ascertain how the economy affected purchase price adjustment drafting and to determine current market practice in private company acquisition agreements.	Articles	11-Feb-2013
4	Survey of Earn-outs in Recent Deals A survey of earn-out provisions in private acquisition agreements signed in 2012, through the end of October.	Articles	20-Dec-2012
5	Doing the Deal with a Cayman Islands Company: Key Issues ... This Article highlights key issues to consider when advising on an M&A transaction involving one or more exempted companies incorporated in the Cayman Islands. It covers the legal framework, common acquisition structures, preliminary considerations, required consents and approvals and the fiduciary duty framework for directors.	Articles	21-Aug-2012
6	The year of the dragon: M&A in China This feature article, the first in a series of articles about the legal aspects of doing business in China, considers how to navigate the M&A market.	Articles	31-May-2012
7	M&A Post-closing Indemnification Claims Study This Article reviews key findings of a study conducted by Shareholder Representative Services (SRS) which examined the provisions of private acquisition agreements that most frequently lead to post-closing indemnification claims. It also considers certain pre-closing practices that can help mitigate these post-closing risks.	Articles	01-Dec-2011
8	Acquisitions of Private Canadian Businesses An overview of acquisitions of private Canadian businesses, including an examination of the key differences in transaction structures, documentation, regulations, taxation and closing and post-closing matters.	Articles	21-Nov-2011
9	Drafting Purchase Price Adjustments to Avoid Disputes and ... This article examines the perceived gap between current market practice and judicial interpretation of purchase price adjustment provisions and proposes various methods for drafting purchase price adjustments and the related dispute resolution provisions to increase certainty of outcome.	Articles	17-Mar-2010
10	2010 Acquisition Financing: Trends From 2009 This article discusses acquisition financing trends that emerged in 2009 and draws some tentative conclusions about what 2010 may bring.	Articles	03-Feb-2010
11	Negotiating M&A Deals in the Absence of Financing The reduced availability of leveraged acquisition financing in the US has led to a number of developments in the negotiation and structuring of private M&A transactions. Tools designed to bridge financing gaps are examined.	Articles	29-Jan-2010
12	MOFCOM Implements Strengthened Rules for Merger and ... The Chinese Ministry of Commerce recently enacted rules strengthening its review of mergers and acquisitions. This Article examines the changes imposed by these rules and discusses the practical implications on international transactions.	Articles	21-Jan-2010
13	Addressing Valuation Uncertainty in M&A Negotiations In the current market not only are buyers and sellers disagreeing over valuation, but there is more than the usual level of disagreement over the prospects of any particular business. This article examines the use of earn-outs and milestones, and the greater focus on purchase price adjustments and closing conditions.	Articles	04-Dec-2009
14	European and UK Trends in Private M&A: The New Deal ... An article on European and UK trends in private M&A in the post-Lehman deal landscape.	Articles	29-Oct-2009
15	Virtual Data Rooms A discussion of the use of virtual data rooms during the due diligence process and other stages of a transaction.	Articles	18-Jun-2009
16	Buyer Beware: Bankruptcy Sales Under Section 363 of the ... This Article discusses the implications of the Clear Channel Outdoor, Inc. v. Knupfer case. Click here to view the full text.	Articles	28-Apr-2009
17	Clear Channel Muddies the Waters of Section 363(m) ... This Article discusses the impact of the decision in Clear Channel Outdoor, Inc. v. Knupfer on section 363(m). Click here to view the full text.	Articles	28-Apr-2009
18	Delaware Bankruptcy Court Overrules Objection of Lone ... This Article discusses credit bidding in section 363 sales and the case of In re GWLS Holdings, Inc. Click here to view the full text.	Articles	28-Apr-2009
19	Merger control: the competitive implications of transactions An examination of the ways in which US anti-trust rules affect mergers and acquisitions. This article is part of the PLC US Special Report, which was published to mark the launch of PLC's first US services.	Articles	11-Nov-2008
20	Private company acquisitions: a survival guide for non-US ... An examination of the key issues for an overseas strategic buyer on the negotiated acquisition of a US private company.This article is part of the PLC US Special Report, which was published to mark the launch of PLC's first US services.	Articles	11-Nov-2008
Updates
1	Successor Liability Applies in FLSA Actions, Even if Asset ... In Brian Teed v. Thomas & Betts Power Solutions, the US Court of Appeals for the Seventh Circuit held that an asset purchaser may be liable as a successor for an acquired company's Fair Labor Standards Act (FLSA) violations, even when the purchaser specifically disclaimed that it was assuming the liabilities of the company in receivership when it acquired its assets.	Legal Update: archive	01-Apr-2013
2	Delaware Court of Chancery Holds that Reverse Triangular ... The Delaware Court of Chancery held in Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH that a reverse triangular merger does not trigger an "assignment by operation of law" provision.	Legal Update: archive	28-Feb-2013
3	Negotiating Sandbagging in Private M&A Deals A fact pattern for the negotiation of sandbagging in a purchase agreement.	Legal Update: archive	28-Feb-2013
4	Defining and Protecting Evaluation Material in M&A ... A discussion of how the disclosing party and the recipient negotiate the definition and disclosure of "Evaluation Material" in confidentiality agreements for M&A transactions.	Legal Update: archive	14-Feb-2013
5	Drafting the Bring-down Closing Condition A discussion of the negotiation tactics between buyers and sellers over the bring-down of the seller's representations and warranties from the signing to the closing date.	Legal Update: archive	21-Nov-2012
6	Sellers Seek New Antitrust Protections in Agreements under ... A recent merger agreement included a unique clause that stated the buyer was being required to make a representation relating to its compliance with the new Hart-Scott-Rodino associate rules.	Legal Update: archive	17-Sep-2012
7	Delaware Confidential Judicial-arbitration Procedures ... US District Court for the District of Delaware held in Delaware Coalition for Open Government v. Honorable Leo E. Strine, Jr. that the new confidential judicial-arbitration procedures established under Delaware law are unconstitutional.	Legal Update: archive	05-Sep-2012
8	FTC Premerger Notification Office Publishes Item 4(c) ... The Premerger Notification Office (PNO) of the Federal Trade Commission (FTC) recently published a tip sheet interpreting Item 4(c) of the Hart-Scott-Rodino Premerger Notification and Report Form. The tip sheet provides rare definitive guidance on some controversial Item 4(c) issues.	Legal Update: archive	26-Apr-2012
9	In re Grumman Olson Industries: SDNY District Court Finds ... The District Court for the Southern District of New York held that a section 363 sale order under the Bankruptcy Code does not bar successor liability claims against the purchaser of the debtor's assets if those claims arise from the debtor's prepetition conduct and do not result in injury until after the conclusion of the bankruptcy proceeding.	Legal Update: archive	10-Apr-2012
10	US District Court Finds Possible Breach of Letter of Intent for ... The US District Court for the Southern District of New York in EQT Infrastructure Limited v. Smith denied a motion to dismiss a claim that an agreement to negotiate in good faith in a letter of intent was breached by the potential sellers as a result of their failure to disclose a condition that they would only enter into a final agreement if they could find a buyer for a separate business.	Legal Update: archive	29-Mar-2012
11	FTC and DOJ Amend Premerger Notification Rules and HSR ... An update on the FTC's and the DOJ Antitrust Division's revisions to the Premerger Notification Rules and Hart-Scott-Rodino (HSR) Form.	Legal Update: archive	07-Jul-2011
12	Delaware Chancery Court Finds Reverse Triangular Mergers ... An update on the Delaware Court of Chancery's opinion in Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH holding that a reverse triangular merger may constitute an assignment by operation of law where the plaintiff presents evidence that the defendant converted the target into a shell company immediately following the merger.	Legal Update: archive	12-Apr-2011
13	FTC Revises Thresholds for HSR Act Filings and Prohibition of ... An update on the FTC's revised thresholds for premerger notification filings under the Hart-Scott-Rodino Act and for the prohibition on interlocking directorates under Section 8 of the Clayton Act.	Legal Update: archive	24-Jan-2011
14	Delaware Court Decision Explains When a Term Sheet ... An update on a Delaware court decision discussing when a term sheet becomes an enforceable contract.	Legal Update: archive	30-Nov-2010
15	Delaware Bankruptcy Court Issues Decisions in Thompson ... An update on the US Bankruptcy Court for the District of Delaware issuing orders in In re Thompson Publishing Holding Co., Inc. and In re American Safety Razor Company, LLC revising debtors' proposed bidding procedures in section 363 sales to alter the balance of control over the auction process between debtors, stalking horse bidders and other potential bidders.	Legal Update: archive	27-Oct-2010
16	Revised Horizontal Merger Guidelines Released An update on the revised Horizontal Merger Guidelines.	Legal Update: archive	20-Aug-2010
17	FTC Proposes Changes to Premerger Notification Form An update on the Federal Trade Commission's proposal to make changes to improve the HSR premerger notification form.	Legal Update: archive	16-Aug-2010
18	NY Court Finds Lenders May Rely on Borrower's ... An update on the New York Court of Appeals decision in DDJ Management, LLC v. Rhone Group LLC holding that lenders may reasonably rely on a borrower's representations and warranties about the accuracy of its unaudited financial statements.	Legal Update: archive	25-Jun-2010
19	FTC Extends Deadline for Comments on Proposed Horizontal ... An update on the FTC's extension of the deadline for public comments on the proposed revisions to its Horizontal Merger Guidelines.	Legal Update: archive	06-May-2010
20	International Competition Network Adopts Recommended ... An update on the adoption by the International Competition Network of "Recommended Practices" for substantive merger analysis by antitrust regulators.	Legal Update: archive	03-May-2010
21	FTC Proposes Changes to Horizontal Merger Guidelines An update on the FTC releasing a proposed revision of its Horizontal Merger Guidelines.	Legal Update: archive	20-Apr-2010
22	Delaware Bankruptcy Court Denies Motion to Dismiss in Suit ... An update on the Delaware Bankruptcy Court's denial of a motion to dismiss fraudulent conveyance claims related to an LBO transaction in a suit brought by one of the debtors in the Mervyn Holdings, LLC bankruptcy.	Legal Update: archive	31-Mar-2010
23	Department of Justice Settles Premerger "Gun Jumping" Case An update on the January 21, 2010 settlement among the Department of Justice, Smithfield Foods and Premium Standard Farms relating to illegal premerger business coordination.	Legal Update: archive	26-Jan-2010
24	FTC Revises Thresholds for Premerger Notification and ... An update on the FTC's revised thresholds for premerger notification and filing fees under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and for the prohibition of interlocking directorates under Section 8 of the Clayton Act.	Legal Update: archive	20-Jan-2010
25	Delaware Chancery Court Adopts Voluntary Arbitration Rules ... An update on the Delaware Court of Chancery's new voluntary arbitration rules for certain business disputes.	Legal Update: archive	19-Jan-2010
26	NY Court Finds Confidentiality Stamp, Oral Agreement ... An update on a New York appellate court decision in Edelman v. Starwood Capital Group, holding that a confidentiality stamp and an oral agreement were insufficient to protect proprietary information compiled in the course of a proposed acquisition that was later abandoned.	Legal Update: archive	14-Jan-2010
27	Delaware Court of Chancery Confirms Contractual Rights in ... An update on the Delaware Court of Chancery's recent bench decision enforcing the confidentiality, exclusivity and good-faith provisions of a letter of intent.	Legal Update: archive	10-Dec-2009
28	First Circuit Holds Earn-out May Imply Duty of Reasonable ... An update on a First Circuit decision concerning whether a purchase agreement with an earn-out contained an implied contractual term under Massachusetts state law requiring the buyer to use reasonable efforts to develop and promote the acquired business.	Legal Update: archive	04-Nov-2009
29	FTC Adjusts Its Civil Penalties under HSR Act to Reflect ... An update on the FTC's increase in civil penalty amounts under the HSR Act to adjust for inflation.	Legal Update: archive	09-Feb-2009
30	Revised Thresholds for Hart-Scott-Rodino Act Will Take Effect ... An update on the effective date of revised thresholds published by the Federal Trade Commission for the pre-M&A notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).	Legal Update: archive	13-Jan-2009
31	FTC Revises Thresholds for Prohibition of Interlocking ... An update on the Federal Trade Commission's revised thresholds for the prohibition of interlocking directorates under Section 8 of the Clayton Act.	Legal Update: archive	12-Jan-2009
32	FTC Adjusts Its Civil Penalties under HSR Act to Reflect ... An update on the FTC's increase in civil penalty amounts under the HSR Act to adjust for inflation.	Legal Update: archive	09-Jan-2009
33	FTC Announces Revised Thresholds for Hart-Scott-Rodino ... An update on the approval by the Federal Trade Commission of revised thresholds for the pre-M&A notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act).	Legal Update: archive	06-Jan-2009
34	Final Regulations Implementing FINSA Published in the ... Notice that the final regulations implementing the Foreign Investment and National Security Act of 2007 have been published in the Federal Register.	Legal Update: archive	21-Nov-2008
35	Treasury Department Issues Final Regulations Implementing ... This is a summary of the final regulations issued by the Treasury Department that implement the Foreign Investment and National Security Act.	Legal Update: archive	17-Nov-2008