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LPC Law Notes Private Acquisitions Notes

Negotiation Of Clauses Comparison Chart Notes

Updated Negotiation Of Clauses Comparison Chart Notes

Private Acquisitions Notes

Private Acquisitions

Approximately 339 pages

A collection of the best Mergers and Acquisitions* notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short, these are what we believe to be the strongest set of Mergers and Acquisitions notes available in the UK this year. This collection is f...

The following is a more accessible plain text extract of the PDF sample above, taken from our Private Acquisitions Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Negotiation of Clauses

Original Wording New Wording Compromise

Reliance on representations

  • Buyer would be able to claim under misrepresentation for any representations or statements made in the agreement

  • Ability to bring a tortious claim (reliance on representations) where damages is more favourable to the buyer and there is the ability to rescind the contract

  • Tortious damages are to put the buyer in the position he would have been in had the harm not occurred, and do not need to mitigate loss (need to prove inducement and reliance)

Deletion of representations

  • Buyer accepting that it has not relied on any representations and therefore reducing the ability to bring a tortious claim

  • Can only bring a contract claim where there is no ability to rescind and there is a duty for the buyer to mitigate their loss and can bring a claim for damages (must be breach and causation) only to put them in the position they would have been in had the contract been properly performed

  • Better wording for the seller would be to even remove in reliance on the

This is already a compromise, seller has kept in in reliance on and the buyer hasn’t include the phrase and inducement

Only make specific warranties as clear representations and all the rest are contractual terms

Not there

Entire Agreement Clause

  • Can only claim for misrepresentation on the warranties in the agreement – Entire Agreement Clause

  • Limiting liability to exclude any outside statements or oral statements

Heavily linked to Clause 18 of the main agreement. If clause 18 if kept in the main agreement then clause 2.5 isn’t so necessary
Not there

Removing Rescission as a remedy

Can only claim for damages rather than claim rescission or termination of the agreement after completion

Jointly & severally

Buyer would be able to sue any seller for the whole amount and not the buyer’s concern how the sellers would sort it out

Removal of Joint & Several and replace ‘sellers’ with ‘warrantors’

  • Sellers are limiting their liability as the minor shareholders and the trustees are highly unlikely to be willing to be liable for the full amount, but rather only for their amount

  • Define Warrantors

  • Sellers cannot really remove joint & several

  • Deed of Contribution (Side agreement) Limiting liability to the amount of consideration that the sellers themselves received

  • Cannot advise conflicting sellers

Represent and warrant

Buyer wants the widest possible range of remedies including misrepresentation

Deletion of represent and warrant

Exclude claims for misrepresentation

Put back in and emphasis entire agreement clause

Full and fair disclosure with sufficient details

  • Achieve high standard of disclosure

  • New Hearts – want sellers to provide the buyers will all information

  • Farin – “save as disclosed” – disclosure must be fair, not enough to leave it to the buyer to work it out

Deleted full limiting the extent of disclosure

Deleted with sufficient details and added disclosure bundle

  • Again limiting disclosure obligations – pushing risk and obligation to review the disclosure bundle on to buyer

  • Allocation of risk to the buyer

  • Seller trying to drag the burden of disclosure down to Infiniteland

  • The word fair has been kept in but the buyer is likely to insist upon full disclosure

  • Whatever standard of disclosure you agree will be the level that the courts apply -

  • Buyer should never accept...

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