This Article discusses issues raised in business combination agreements, namely issues in provisions that create affirmative duties of each party to each other, and that allocate risk between the parties as to various post-signing events or changes. These provisions are discussed from the standpoint of a "selling" company. The Article reviews certain lines of cases in Delaware regarding the fiduciary duties of directors, and summarizes guidance provided by these cases in structuring investigation and decision making by the seller's board. The author concludes with a discussion of certain provisions of a business combination agreement that provide risk allocation between the parties.
Stephen R. Volk, Lewis H. Leicher & Raymond S. Koloski,
Negotiating Business Combination Agreements - The "Seller's" Point of View,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol33/iss3/8