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Blog Bite: How Do I Conduct Due Diligence in a Share Purchase or M&A?

This article posted on our partner site Mondaq.com  After a term sheet in an asset or share purchase deal is signed, the parties will usually commence "due diligence". This article posted on our ...

Overview of Asset Purchase Agreement

Overview of Asset Purchase Agreement   What is this document? This is an agreement between a vendor/seller and a purchaser which sets out the terms and conditions relating to the purchas...

It never hurts to take a look at the assets after the deal is closed.

Purchasers and their financers will require satisfactory inspection reports as a condition for closing the transaction. An asset purchase agreement should include clear procedures for inspec...

What’s in a rep – how reps and warranties work to protect the acquirer.

This article provides a good explanation on the definition of representations and warranties at the end of the first section, and their use in protecting an asset or share purchaser. The art...

Has the Particular Liability Been Specifically Assumed, Excluded or Not Mentioned in the Apa?

Both vendors and purchasers have a strong interest in ensuring that the ownership of all liabilities has been clearly allocated by the APA. The parties should address the question: If the liabilities ...

Non-Compete in an Asset Purchase Agreement is Enforceable, but It May Not Be in an Employment Agreement

Some jurisdictions, including California, permit only post-acquisition non-competes, in order to protect a purchaser’s interest in capitalizing on acquired goodwill for a limited period. If parties ...

Applicable Tax Laws must be Considered When Structuring an Asset Purchase Agreement

The APA should contain clear provisions allocating responsibility for taxes. Parties should also be familiar with the tax laws applicable to their transaction, particularly if it could be argued that ...

A Non-Compete Clause Must be Unambiguous

Restrictive covenants must be drafted carefully to give adequate protection to the purchaser, and purchasers should be able to show the connection between the price paid for the goodwill of the busine...

Closing Conditions of an Asset Purchase Agreement May Be Waived

Purchasers under an APA may waive any of the closing conditions, but should consider carefully before doing so. Eagerness to close a transaction may lead to problems later if due diligence has been in...

Setting Aside Arbitral Awards Is Becoming More Restrictive When It Comes to Asset Purchase Agreements

Parties who choose arbitration to settle disputes under an APA should note that courts have become increasingly reluctant to interfere with arbitration awards if a fair process has been used to arrive...

An Undervalued Purchase Price Can Face Objection By a Trustee in Bankruptcy

Although parties are generally free to negotiate their sale price, in the case of a sale by a bankrupt, the price must reflect the market value of the assets in order to be able to withstand an object...

Indemnity May Be Limited to a Limited Period of Time

When drafting an indemnity clause in an asset purchase agreement, parties may wish to limit the time period in which the indemnity clause is to be effective. (This is referred to as the indemnific...

Detailed Description of Assets May Avoid Title Transfer Issues

Parties to an asset purchase agreement may avoid unpleasant surprises with respect to title transfer issues if every asset, or category of assets is carefully itemized in a schedule to the agreement. ...
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