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

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.