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Commercial Awareness Discussion
The M&A Case Study Experiment - Part 1
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<blockquote data-quote="ml_vk2022" data-source="post: 130171" data-attributes="member: 20379"><p>Q1</p><p></p><p>- streamlines and consolidates downstream markets in allowing developers to make games that support a substantial number of players and huge environments. Note: Digion has patented cloud technology software that allows developers to make games but they do not own software to help developers host multiplayer servers.</p><p></p><p>- achieves economies of scale in reducing R&D efforts through knowledge acquisition and IP acquisition of Immersive Ltd</p><p></p><p>- ultimately captures new opportunities for growth for Digion through vertical integration</p><p></p><p>Q2</p><p></p><p>Convince Elena to keep Tristan for now as he is a key asset, being a vice-president but concedes accepting Tristan means his contract will include more control clauses</p><p></p><p>- insert a unilateral non-solicitation clause in Tristan’s employment contract with Digion + relevant non-solicitation / non-complete clauses in SPA AND an NDA specifying this during discussions of a potential transaction during this period</p><p></p><p>- include a 6-12 month look-back period (i.e., time starts running against him prior to solicitations or hiring) of former employees</p><p></p><p>- include a second carveout to include all of Digion’s current employees, to start running when Digion start becoming aware of such solicitations, in connection with its evaluation of a potential transaction w/ Immersive Ltd</p><p></p><p>Q3</p><p></p><p>Clause 5 are condition precedents. The purpose of Clause 5 is to provide stipulations that Immersive Ltd must satisfy before any deal can proceed. Failure to satisfy any of Clause 5’s sub-clauses means Digion can walk away without suffering loss or liability.</p><p></p><p>Q4</p><p></p><p>If I were to represent Immersive Ltd as its lawyer, ways I could limit its liability include:</p><p></p><p>(a) include a disclose letter process so that Digion enters the deal knowing some of Immersive Ltd’s liabilities are known to both parties, reducing the risk Digion can lodge a claim post-completion</p><p></p><p>(b) insert a clause on a time limit for making claims IF a warranty or indemnity breach was found</p><p></p><p>(c) cap on the amount claimed IF Digion was successful in establishing its existence</p><p></p><p></p><p>Q5</p><p></p><p>- Homebase in advising English law which means implications in the wording used (i.e., reasonable commercial efforts vs best endeavours) in the SPA are clear and known</p><p></p><p>- “exclusive jurisdiction” also adds extra weight in finding favour that English law and English courts would hear any eventual dispute</p></blockquote><p></p>
[QUOTE="ml_vk2022, post: 130171, member: 20379"] Q1 - streamlines and consolidates downstream markets in allowing developers to make games that support a substantial number of players and huge environments. Note: Digion has patented cloud technology software that allows developers to make games but they do not own software to help developers host multiplayer servers. - achieves economies of scale in reducing R&D efforts through knowledge acquisition and IP acquisition of Immersive Ltd - ultimately captures new opportunities for growth for Digion through vertical integration Q2 Convince Elena to keep Tristan for now as he is a key asset, being a vice-president but concedes accepting Tristan means his contract will include more control clauses - insert a unilateral non-solicitation clause in Tristan’s employment contract with Digion + relevant non-solicitation / non-complete clauses in SPA AND an NDA specifying this during discussions of a potential transaction during this period - include a 6-12 month look-back period (i.e., time starts running against him prior to solicitations or hiring) of former employees - include a second carveout to include all of Digion’s current employees, to start running when Digion start becoming aware of such solicitations, in connection with its evaluation of a potential transaction w/ Immersive Ltd Q3 Clause 5 are condition precedents. The purpose of Clause 5 is to provide stipulations that Immersive Ltd must satisfy before any deal can proceed. Failure to satisfy any of Clause 5’s sub-clauses means Digion can walk away without suffering loss or liability. Q4 If I were to represent Immersive Ltd as its lawyer, ways I could limit its liability include: (a) include a disclose letter process so that Digion enters the deal knowing some of Immersive Ltd’s liabilities are known to both parties, reducing the risk Digion can lodge a claim post-completion (b) insert a clause on a time limit for making claims IF a warranty or indemnity breach was found (c) cap on the amount claimed IF Digion was successful in establishing its existence Q5 - Homebase in advising English law which means implications in the wording used (i.e., reasonable commercial efforts vs best endeavours) in the SPA are clear and known - “exclusive jurisdiction” also adds extra weight in finding favour that English law and English courts would hear any eventual dispute [/QUOTE]
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