Global

Private Equity

Watch

Contributor

Glenn D. West

Retired Partner

+1 214 746 7780

gdwest@weil.com

Bio on Weil.com

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Non-Competes and Forfeiture-for-Competition Provisions – The Reasonableness Override Under Delaware Law

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

New Cases Shed Further Light on the Limits of Non-Recourse Provisions

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Warning: Some Contractual Words May Actually Be Magic

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Musings on the Exercise of “Sole Discretion”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

When Does “And” Mean “Or”?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Supposed Hierarchy of “Efforts” Clauses

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COVID-19 Updates, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

COVID-19 and Lease Obligations: Does a Force Majeure Clause Override the Frustration of Purpose Doctrine?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Latest Word on Fee-Shifting Pursuant to an Indemnification Provision

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

One of the Perils of 50/50 Ownership and Control: A Vague Standard for Determining the Validity of Board Actions Legally Taken but Alleged to Have Had an “Inequitable Purpose”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Survival Periods—Covenants Are Not Representations or Warranties, and Fraud Claims Premised Upon Contractual Representations and Warranties Are Not the Same as Indemnification Claims

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Silence Appears to Remain Golden—Contractarian Principles Are Reaffirmed in the So-Called “Sandbagging” Debate

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Beware the Type II Preliminary Agreement

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Are Consequential Damages Recoverable for Breach of a Contractual Obligation to Pay a Sum of Money?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A Critical Determination: Who Is the Restricted Person in a Change of Control or Anti-Assignment Clause?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Excluded Loss Provisions and the Danger of Contractually Slaying Mythical Dragons

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Convertible Debt: A New York Usury Refresher

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Fraud Carve-Outs Come of Age

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

What Has Been Terminated When You Terminate Your Contract?

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Features, Glenn West Musings, Insights, Legal Developments, Portfolio Company Matters, What's New on the Watch?

When Is a Person’s Status as an Affiliate Relevant?

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Too Much Dynamite—The Non-Recourse and Survival Clauses Are Both Subject to Delaware’s Built-In Fraud Carve-Out for Intentional Intra-Contractual Fraud

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Stuff You Might Need to Know: What Assignments Do Broad Anti-Assignment Clauses Not Prohibit?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contractually Reimposing Fiduciary Duties in an LLC Operating Agreement Despite Clause Waiving Fiduciary Duties

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Delaware Once More Rejects a Buyer’s Efforts to Invoke an MAE Clause

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

There Is More to a Choice-of-Law Clause Than Filling in the Name of the Selected State

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Fraud Based Upon Oral Future Promises (Unlike Fraud Based Upon Oral Misrepresentations of Fact) Can Be Defeated by a Standard Integration Clause

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

The MAE Clause, Mrs. Palsgraf and Events “Arising From or Related To” MAE Exceptions

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Features, Insights, Legal Developments, Trends, What's New on the Watch?

Crypto Comes of Age: M&A Considerations as Crypto Deal Activity Surges

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Cash Left Behind by the Seller in the Target Belongs to the Target

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Features, Glenn West Musings, Insights, Legal Developments, Sell-side, What's New on the Watch?

Delaware Declares That Deliberate Fraud Is Indeed Something Completely Different Than Reckless Fraud

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Features, Glenn West Musings, Insights, Legal Developments, Shareholder Agreements, What's New on the Watch?

Determining the Fair Market Value of Shares—“Unintended Mischief” from Marketability and Minority Discounts

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Features, Glenn West Musings, Insights, Legal Developments, Sell-side, What's New on the Watch?

The Limits of Liability Limitation Provisions: Nonrecourse Clause, Like Exclusive Remedies Provision, May Be Subject to Delaware Public Policy Exception

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

When “Liquidated Damages” Are Not—The Common Law’s Abhorrence of Penalties and What You May or May Not Be Able to Do About It

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The First-Party/Third-Party Claim Distinction in Indemnification Provisions—Unambiguously Broad Is Not Necessarily the Same Thing as “Clear and Unequivocal”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Latest Effort to Use Fraud to Overcome a No-Indemnity Deal—The Target’s Preparation of the Preliminary Closing Statement

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Mergers and Restrictions on Assignments by “Operation of Law”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

No-Third-Party-Beneficiary Clauses and the “Ever-Evolving Contractual Arms Race”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Recent Delaware Cases Illustrating How Uncapped Fraud Claims Can and Cannot Be Premised Upon Written Representations

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Limits of Interposing a Limited Liability Entity as the General Partner of a Limited Partnership

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Do You Really Know What “Consequential Damages” Means?

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Distressed, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

An Asset Purchase That Wasn’t—Beware the De Facto Merger Doctrine in Distressed M&A

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COVID-19 Updates, Features, Glenn West Musings, Insights, What's New on the Watch?

Pondering One of Diligence’s Seemingly Imponderable Questions: The Effect of Restrictions on “Indirect” Transfers

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COVID-19 Updates, Features, Glenn West Musings, Insights, What's New on the Watch?

Operating in the Ordinary Course in Extraordinary Circumstances

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contractual Declarations of Legal Rights or Status—Just Because You Say It Is Or Isn’t So, Doesn’t Mean It Is Or Isn’t So

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COVID-19 Updates, Features, Insights, What's New on the Watch?

Debt Buybacks— A Familiar Tool for New Circumstances

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Heather L.
Emmel

Gabriel F.
Gregson

COVID-19 Updates, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Impossibility, Impracticability, Frustration, Force Majeure, Efficient Breach, and COVID-19

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Your Mother Was Right: Following Your Friends (or Market Studies) Off a Bridge is a Bad Idea

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Defining “Material”—What Matter Will Matter?

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Features, Insights, What's New on the Watch?

Just Because a Really Bad Thing Happens Does Not Mean a Material Adverse Effect has Occurred: Assessing the Latest Delaware MAE Decision

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Richard W.
Slack

Joshua M.
Glasser

Features, Glenn West Musings, Insights, Legal Developments, R&W Insurance, What's New on the Watch?

Indemnify is a Funny Word Carrying Historical Baggage—Be Aware and Use with Care

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Special Order Your Forum Selection Clause

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Location, Location, Location”—The Three Things that Matter the Most in Real Estate May Also Matter the Most in Ensuring the Proper Application of All of Your Contractually Chosen Law

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Little-Regarded Confidentiality Agreement—Distinguishing Between “Affiliates” Entitled to Receive Confidential Information and “Affiliates” Actually Bound by the Confidentiality Agreement

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Standard” Versus “Bespoke” Boilerplate—A Distinction That Can Make a Big Difference

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Forever is a Long Time or No Time at All: More Idiosyncrasies of the Common Law of Contract You Need to Know

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Europe, Features, Glenn West Musings, Insights, Portfolio Company Matters, What's New on the Watch?

Selling Your Portfolio Company Subject to a New York Law Governed Contract—Identifying a Hidden Term Built-In by New York’s Common Law: the Mohawk Doctrine

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Features, Glenn West Musings, Insights, Portfolio Company Matters, What's New on the Watch?

Preserving Privileged Communications in the Sale of a Portfolio Company—that Clause in the Back of the Agreement Can Actually Work

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Features, Glenn West Musings, Insights, What's New on the Watch?

Releases and Covenants Not to Sue—Seeming Legal Redundancies That Aren’t

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Features, Glenn West Musings, Insights, What's New on the Watch?

Indemnification: Importing Corporate Concepts into an LLC – Permissible, But Not Required and Potentially Detrimental

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Avoiding the Other F-Word: An Anti-Reliance Clause Should Actually Disclaim Reliance on Extra-Contractual Representations Even When the Parties Agree that None Were Made

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Serving on the Board of Your Portfolio Company: Be Careful What You Share in Emails and Texts Among You and Your Firm’s Other Designated Board Members

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Features, Glenn West Musings, Insights, Legal Developments, Thought Leadership, What's New on the Watch?

There is No Fraud Without “Justifiable” Reliance: Unambiguous Terms of Written Contract Trump Claims of Fraudulent Inducement Even in the Absence of an Effective Non-Reliance Clause

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contracting to Avoid Tort-Based Punitive Damages Awards

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Zebra versus Striped Horse Phenomenon Rears its Head Again—Distinguishing an Expert Determination from an Arbitration

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Portfolio Company D&O Insurance—Are the Director Designees of PE Owners Actually Covered?

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Robert F.
Carangelo

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Icebergs in Your Contract—Undefined Fraud Carve-outs Continue to Produce Peril for Innocent Private Equity Sellers

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Words Matter—Even Deleted Ones in a List of Potentially “Redundant Synonyms” from a Prior Draft

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Features, Glenn West Musings, Insights, Legal Developments, R&W Insurance, Trends, What's New on the Watch?

While Time Marches On—Breach of Representations & Warranties, Survival Periods, and New York’s Statute of Limitations

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A Delaware Case Has Finally Determined That There is Such a Thing as a “Material Adverse Effect”

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, Topics, Trends, What's New on the Watch?

A Delaware Supreme Court Footnote Reignites Concerns about the Reliability of Contractual Representations & Warranties–Are Deal Lawyers Really Going to Start Debating Sandbagging Again?

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Europe, Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Avoiding a Dog’s Breakfast—Some Timely Reminders of How to Effectively Limit the Universe of Purported Representations upon which Fraud Claims Can be Made

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Post-Closing Purchase Price Adjustment Mechanics—Distinguishing Expert Determinations from Arbitrations

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Something Borrowed May Make You Blue—Re-Examining New York Choice of Law Clauses

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Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Cognitive Dissonance in the Common Law of Contracts: Oral Modifications to Written Agreements that Purport to Invalidate Oral Modifications

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, U.K., What's New on the Watch?

How Anti-Assignment Workarounds Work (or Not)

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Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Usury Bites—A Refresher on an Easily Overlooked Issue in the Restructuring and Private Equity Arenas

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, R&W Insurance, Topics, Trends, What's New on the Watch?

How a 12 Month Survival Period Can Become A Lot Longer (or Not)—the Required Notice of Claim

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Diligence, Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

IP Diligence Can Really Matter in Private Equity Acquisitions—And That Includes Checking the Grammar Used in Purported Employee IP Assignments

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Not So Funny Things That Can Happen on the Way to Your Contractually Selected Forum

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Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Transaction-Related Tax Deductions and the Worst Words Ever Spoken by a Deal Professional

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Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

A New Year’s Resolution for Deal Professionals: Make Sure Your Written Deal Documents Say (And Will Be Interpreted to Mean) What You Meant

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Your Word May Really Be Your Bond (and a Specifically Enforceable One to Boot)

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Perils of Failing to Define “Voting Power” in a Change of Control Clause

Contributor(s)

Nathaniel
Moore

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

So You Think You Know What a “Definitive” Agreement Is?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Mutatis Mutandis, “What a Wonderful Phrase”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Making Sure Your “Choice-of-Law” Clause Chooses all of the Laws of the Chosen Jurisdiction

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Features, Glenn West Musings, Legal Developments, What's New on the Watch?

A Real Beating or a Written Agreement—An English Case Provides a Good Reminder that Oral Agreements Can be Binding

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Avoiding the Mindless Use of the Brainless MAC Clause

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Ancillary Agreements, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

What is the Deal with No Oral Modification/Waiver Clauses?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Agreed Damages or Unenforceable Penalties—Drafting to Affirm the Former and Avoid the Latter

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Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

When Buyers Must Advance the Defense Costs of the Selling Shareholders They Accuse of Misrepresentations in a Stock Purchase Agreement

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Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing?

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Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A New Reason for Private Equity Sellers to Hate Undefined “Fraud Carve-outs”

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Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Yoda was Wrong, at Least with Respect to Contracts—“I'll Give it a Try” Evidences an Affirmative Commitment After All

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Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

For Want of a Comma, the Case was Lost

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Europe, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Contracting Accidentally through Preliminary Agreements—A Writing “Subject To Contract” May or May Not be a Contract

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Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

You Can Cry if You Want To, But if You Are Not “the” Party, It’s Probably Not “Your” Party—Distinguishing Between Becoming a “Party” to a Contract and Merely Being an Assignee

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Individually or Collectively, as the Context May Require”—Clarifying the Meaning of Defined Singular Terms; It Might Actually Matter

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Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Excluded Losses Part II: An English Perspective on the Continued Failure of Predictability Regarding the Use of the Phrase “Consequential or Special Losses”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Excluded Losses” Provisions and the “Butterfly Effect”—the Continued Failure of Predictability Regarding Consequential Damages Waivers in M&A Agreements

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

You May be Bound by the Contractual Company You Keep—A Cautionary Tale About the Use of the Term “Affiliate” in an Entity’s Release of Claims

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

How a “Voluntary” Default under An Indenture Converted an Optional Redemption Provision into a Mandatory Redemption Provision Requiring Payment of a Make-Whole Premium

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contract Drafting 101—It Doesn’t Matter What You Actually Meant by What You Said; It Only Matters What is Determined to be Meant by What You Actually Said

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Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Freedom of Contract?—An Agreed Damages Clause May Not Actually Be Agreed

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Europe, Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Reps and Warranties Redux—A New English Case, An Old Debate Regarding a Distinction With or Without a Difference

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Be Wary of a Someone Offering a “Fulsome” Set of Reps

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Features, Glenn West Musings, Insights, Legal Developments, Trends, What's New on the Watch?

The Rule Against Perpetuities May Be Forgotten, But It Should Not Be Ignored—It May Still Affect the Validity of Your Deal

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Features, Funds, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

State Pension Funds and their Status as Sovereigns—The Rules That Apply to You May Not Apply To Them

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Transactional Common Interest Privilege in New York—Common, But Not So Privileged

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Protecting the Private Equity Firm and its Deal Professionals from the Obligations of its Acquisition Vehicles and Portfolio Companies

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments

On the Nature of Being Mistaken in Contract

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Features, Glenn West Musings, Insights, Legal Developments

Advancement and Indemnification for Former Target Company D’s and O’s–Distinct Concepts with Different Results in the Private Company Acquisition Context

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Features, Glenn West Musings, Insights, Legal Developments

Making Sure the Intended Conditions to Your Contractual Obligations are Actually Conditions

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Features, Glenn West Musings, Insights, Legal Developments, Sell-side

Private Equity Sellers Must View “Fraud Carve-outs” with a Gimlet-Eye

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Features, Glenn West Musings, Insights, Legal Developments

The Surprising Connection Between an Extra-Contractual Fraud Claim and a Flesh-Eating Zombie

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Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Making Sure Your Survival Periods Actually Work as Intended

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Glenn West Musings, Insights, Legal Developments, Purchase Agreements

The Law You Choose to Govern Your Contract May Not Be the Law that Governs

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Contractually Designating a Valuation Expert as the Binding Decision Maker Means Just That, Even if the Expert Turns Out to be Wrong

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Private Equity 101 — The Need to Contractually "Box" Identified Risk

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Lessons from a Consequential Case Concerning the Consequences of Consequential Damages Waivers

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements, Sell-side

Exclusive Remedy Provisions, Fraud Carve-outs, and Personal Liability for Sell-Side Private Equity Professionals

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Promissory Fraud, Anti-reliance and the Dreaded "Undefined" Fraud Carve-out

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Diminution in Value Damages & Waivers of Lost Profits

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Management, Portfolio Company Matters, Purchase Agreements

Writing Indemnification and Advancement Provisions to Protect Former Officers and Directors

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Glenn West Musings, Insights, Legal Developments, Management, Purchase Agreements

Key Takeaways Re: Option Holders Rights from Fox v. CDX Holdings, Inc.

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