Class 8 - Slides

Class 8 - Slides - ▪ Buyer is made whole for seller’s...

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[NYCorp: 2568627.7] 1 Class 8 Remedies, Indemnification
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[NYCorp: 2568627.7] 2 Remedies If the deal never closes: Limitations on remedies Expense reimbursement Liquidated damages Brazen United Rentals Huntsman Special issues with public company transactions ConEd Pre-closing remedies entitling injured party to refuse to close Pre-closing “cure” provisions If the deal closes: Money damages for breach Indemnification Rescission Specific performance Unwinding
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[NYCorp: 2568627.7] 3 Post-Closing Indemnification Includes third party claims (traditional meaning of “indemnification”) non-third party claims (i.e. , breaches of the agreement) Rationale for indemnification Expansion of liability Who should be the indemnitors? Who may be indemnified?
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[NYCorp: 2568627.7] 4 Scope of the Indemnity Substantive elements
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Unformatted text preview: ▪ Buyer is made whole for seller’s breach of ● Representations and warranties ● Covenants ● Assumed/excluded liabilities ● Environmental liabilities ● Other specified items ► Fees and expenses ► Third party claims [NYCorp: 2568627.7] 5 Indemnities: Limitations and Survival ► How to avoid dealing with de minimis loss? ▪ Baskets (no liability until total losses exceed $[ ]) ● Threshold or deductible? ▪ Minimums (no liability for individual claims below $[ ]) ► Caps (no liability in excess of $[ ]) ► Time limits (no liability for claims after [ ] months) ▪ Duration of covenant v. survival of lawsuit for breach ▪ Contract variation of normal statute of limitations ► Effect of buyer’s knowledge ▪ Sandbagging ● Ziff-Davis...
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This note was uploaded on 11/28/2009 for the course LAW 7591 at Cornell.

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Class 8 - Slides - ▪ Buyer is made whole for seller’s...

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