Acquisitions in the life sciences industry frequently involve developing and not-fully proven pharmaceutical products and medical devices. In such situations, the acquisition agreement often seeks to bridge a valuation gap by incorporating milestone, or earn-out, provisions, typically coupled with an obligation on the buyer to use "commercially reasonable efforts," or something similar. Those clauses, and "material adverse effect" provisions, are frequently the source of litigation. Join us for a look into recent litigation regarding these provisions and a discussion of some considerations when drafting the acquisition agreement.
Jeffrey A. Fuisz, Partner, New York
James D. Herschlein, Partner, New York
Elissa J. Preheim, Partner, Washington DC
Angela R. Vicari, Partner, New York