M&A Agreements: Limitations on Contractual and Extra-Contractual Liabilities

Crafting Exclusive Remedy, Extra-Contractual Representation Waiver, and Other Risk Mitigation Provisions

Recording of a 90-minute premium CLE webinar with Q&A


Conducted on Wednesday, July 29, 2020

Recorded event now available

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Program Materials

This CLE webinar will prepare M&A deal counsel to draft contracts to protect sellers from post-closing liability. The panel will discuss how courts have analyzed different limitation of liability provisions and how they impact buyers and sellers.

Description

Effective limitation of liability clauses in M&A agreements thwart dissatisfied parties who may attempt to evade the contractual limits. In today's economic environment, such parties have a greater incentive than before to pursue such evasion and perhaps more potential opportunities to do so. Such parties may assert allegations of fraud or misrepresentation and/or claim inaccuracies of pre-contractual representations and contractual warranties. They may also assert claims based upon actual or purported public policies associated with the COVID-19 situation and other evolving legal areas.

For seller's counsel, the goal is to limit all potential claims of breaches of the representations and warranties set forth only in the four corners of the agreement. Deal counsel must craft contract language to maximize the likelihood of enforcement of the exclusive remedy provisions in the contract, minimizing risk to the seller of contractual and extra-contractual post-closing liability in M&As.

Listen as our authoritative panel of M&A attorneys prepares counsel to craft contracts that limit contractual and extra-contractual liabilities, focusing on sources of existing and potential new extra-contractual liabilities, ways to protect parties through due diligence, voluntary disclosure and discussion, pricing, holdback/"basket" structuring, auction and negotiating processes, and exclusive remedy and extra-contractual representation disclaimer and waiver provisions.

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Outline

  1. Sources of extra-contractual liability: traditional and potential new ones; innovative uses of force majeure and MAC provisions
  2. Costs associated with delays and impediments resulting from increasingly aggressive application of traditional doctrine in recessionary environment--e.g. antitrust, employment, environmental, etc.--and simple delays resulting from backlogged agencies
  3. Protecting parties through due diligence, disclosure, pricing/breakup and other fee, auction and negotiation process
  4. Protecting parties through exclusive remedy and extra-contractual representation waiver provisions
  5. Lessons from recent case (and statutory/regulatory) law

Benefits

The panel will review these and other critical questions:

  • What are best practice drafting, negotiating, due diligence and pricing strategies for limiting contractual and extra-contractual liabilities when drafting M&A agreements?
  • How have the courts analyzed exclusive remedy and extra-contractual representation and waiver provisions in M&A contracts?
  • How can parties achieve protection from extra-contractual liabilities during the negotiation process?

Faculty

Mihanovic, Mark
Mark J. Mihanovic

Partner
McDermott Will & Emery

Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions...  |  Read More

Robins-Martin
Martin B. Robins

Partner
FisherBroyles

Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual...  |  Read More

Stromberg,Thomas
G. Thomas Stromberg

Partner
Perkins Coie

Mr. Stromberg concentrates his practice in representing managed money that is invested in the acquisition and financing...  |  Read More

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