Often overlooked until invoked, the dispute resolution provisions of an acquisition agreement frequently mirror the terms of a lawyer’s last deal. Yet such provisions—including purchase price adjustment clauses, the terms of governing earn-out disputes, and the contract sections outlining the indemnification claims process—often have long-term economic ramifications on the buyers and sellers. In working with corporate lawyers over the years, we have noted that corporate lawyers understand (and give intense thought to) the leverage their clients have, what their clients hope to accomplish in a transaction, and what makes long-term economic sense in drafting an agreement and negotiating more advantageous deal terms. In this article, we hope to bring the same analytical intensity to dispute resolution provisions. While every deal is different and perspectives will vary between buyers’ and sellers’ counsel, we have attempted to inform practitioners of the issues that can arise depending on how the parties design their dispute resolution provisions. Accordingly, we have first set out our views on the current transactional environment and its implications on deal leverage and terms. Then, we have described each of the key deal provisions that we believe fall under the broad rubric of “dispute resolution” provisions. In particular, we have analyzed: (i) Purchase Price Adjustments; (ii) Earnouts; and (iii) Indemnity for Breach of Representations and Warranties.
Kenneth Mathieu & Vincent (Trace) P. Schmeltz III, Dispute Resolution as a Part of Your Merger or Your Acquisition Agreement, 1 MICH. J. PRIVATE EQUITY & VENTURE CAPITAL L. 61 (2012).