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
This CLE course 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.
- Sources of extra-contractual liability: traditional and potential new ones; innovative uses of force majeure and MAC provisions
- 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
- Protecting parties through due diligence, disclosure, pricing/breakup and other fee, auction and negotiation process
- Protecting parties through exclusive remedy and extra-contractual representation waiver provisions
- Lessons from recent case (and statutory/regulatory) law
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?
Mark J. Mihanovic
McDermott Will & Emery
Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions... | Read More
Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions involving companies in a broad range of industries. He has substantial experience advising corporate boards of directors and management regarding fiduciary duties (including in connection with potential change in control transactions and consideration of "poison pill" stockholders rights plans) and corporate governance issues. He advises publicly-traded companies and investment banks and other financial advisers with respect to a wide variety of securities law compliance matters.Close
Martin B. Robins
Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual... | Read More
Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual property (including licensing, compliance and DMCA) and information technology/data security areas. He represents public and private clients of all sizes and in all industries ranging from Fortune 50 multinational firms to substantial private companies to start-ups to individual executives. His work encompasses transactions of all sizes and covers a wide array of transactions including business acquisitions, shareholder buy/sell agreements bank and similar financing, software licenses and computer/telecom hardware procurements, joint ventures, equipment and real estate leases, patent licenses, outsourcing and managed service contracts. He also publishes extensively in a number of legal journals and presents at legal conferences.Close
G. Thomas Stromberg
Mr. Stromberg concentrates his practice in representing managed money that is invested in the acquisition and financing... | Read More
Mr. Stromberg concentrates his practice in representing managed money that is invested in the acquisition and financing of private companies. He has broad experience handling cross-border transactions involving parties across North America, Europe, Australia and Asia, including China, Japan, Hong Kong, Russia and India.Close