How New Delaware Amendments Impact Stockholder, Merger Agreements
Over the summer, Delaware enacted a number of amendments to the General Corporation Law of the State of Delaware (the “DGCL”). The amendments were largely crafted in response to several recent decisions by the Delaware Chancery Court (the “Court”) that the transactional bar had concerns over. Stockholder Agreements The Moelis Decision In February 2024, the…
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UCC Article 2: Because Even Your Toaster Deserves a Fair Contract
The Uniform Commercial Code (“UCC”) is a comprehensive set of laws governing commercial transactions. It was designed and drafted with the aim of standardizing, harmonizing, and simplifying the laws around commercial transactions across the country. It governs various aspects of commercial transactions, providing a consistent set of rules to promote fairness, predictability, and efficiency. While…
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The Power of Preferred Stock: A Primer for VC, PE, and Founders
Preferred stock is a key financing instrument in the world of private equity (PE) and venture capital (VC), frequently used to balance the interests of investors and founders. Issued by corporations, preferred stock confers specific rights and privileges — often outlined in the company’s certificate of incorporation — making it distinct from common stock. These…
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The Effect of Choice of Law Provisions in Prenuptial Agreements
When wedding bells are ringing, the last thing most couples want to think about is the possibility of death or divorce. However, for those entering long-term relationships or preparing for marriage, prenuptial agreements can be crucial for preserving control over assets. These agreements provide a framework for individuals to protect their assets and guard against…
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Eleventh Circuit Provides Clarity to Incorporation-By-Reference Doctrine
The United States Court of Appeals for the Eleventh Circuit recently clarified the incorporation-by-reference doctrine in terms of how a lower court may treat documents outside the four corners of the complaint in deciding both motions to dismiss and motions for judgment on the pleadings with respect to Federal Rule of Civil Procedure[1] 12(d). This…
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Litigating Arbitration Awards: Federal Courts Decline to Punch the Jurisdictional Ticket
Over two years ago, the United States Supreme Court divested the federal courts of jurisdiction over all but a few disputes concerning the confirmation or vacation of arbitration awards. Since then, the federal appellate courts have further chipped at the contours of their subject matter jurisdiction, essentially delegating enforcement of arbitral awards to the states.…
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Mastering the Art of Lease Negotiation: Crafting Win-Win Agreements
Clients often request that their counsel focus lease negotiations exclusively on those terms most likely to have the most significant impact on economics and the long-term relationship with the counterparty. This request comes up most frequently from tenants who are presented with a standard lease form for a relatively short-term lease at a particular landlord…
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Foreign Entity Qualification Requirements: New York, Florida, and Massachusetts
For many founders, business formation in Delaware is preferrable regardless of where the business plans to operate. There are many reasons for that, including preferable corporate taxes, business friendly laws and regulations, and favorable legal precedent. It can also be beneficial to form in Delaware because so many entities do — it makes Delaware like…
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Closing with Confidence: Representations and Warranties Insurance in M&A
Representations and warranties insurance (RWI) has become an increasingly common feature in mergers and acquisitions (M&A) transactions, serving as a risk management tool for both buyers and sellers. RWI facilitates deal-making by offering protection against financial losses arising from breaches or inaccuracies of the representations and warranties made by the seller in the transaction documents,…
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Survival Periods and Delaware’s Statute of Limitations in M&A
Delaware is well known as a favored jurisdiction for mergers and acquisition deals, and for good reason — the jurisdiction’s business-friendly legal environment offers numerous efficiencies and predictability. Attorneys and their clients alike favor both increasing efficiencies and achieving predictability in how deal documents would be analyzed if there is ever a dispute. As a…
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