About the Course
Introduction
This CLE course will examine the advantages and risks of contingent and deferred consideration in M&A transactions. During this comprehensive discussion, you'll learn how to negotiate, draft, and enforce purchase price provisions while learning how to avoid pitfalls that pose the greatest litigation risk. Indemnity opportunities and financing considerations will also be analyzed during this 90-minute deep-dive discussion.
Description
In today's M&A market, cash at closing is often only part of the purchase price. Valuation uncertainty, tighter credit markets, evolving financing structures, and competing expectations between buyers and sellers have made deferred and contingent consideration increasingly common. Earn-outs, subordinated seller notes, rollover equity, escrows, holdbacks, contingent value rights, and other creative purchase price mechanisms frequently determine whether a transaction succeeds—or becomes the subject of post-closing disputes.
This program examines the legal, business, and practical considerations involved in structuring deferred purchase price arrangements. Through a practical, deal-oriented discussion, the panel will compare the advantages and risks of the principal forms of contingent and deferred consideration, explore common negotiation issues, identify drafting pitfalls that frequently lead to litigation, and examine the implications of senior lender financing, intercreditor arrangements, and bankruptcy.
Listen to this experience panel's practical guidance on negotiating, documenting, and enforcing increasingly important purchase price transaction structures. After attending, have a better understanding of how purchase price provisions can improve deal success when business conditions change after closing.
Presented By
Ms. Baucom is a partner in the firm's Corporate practice. She focuses her practice on mergers and acquisitions and other corporate transactions. Ms. Baucom regularly represents public and private companies, private equity sponsors and financial institutions on a broad range of mergers and acquisitions, investments, joint ventures, recapitalizations and other business combination transactions. She is often involved in cross-border transactions involving parties and operations in multiple jurisdictions and serves many foreign based clients.
Mr. DeFeo, Jr. is a partner and a co-chair of Herrick's Corporate Department, where he focuses on domestic and international capital markets, corporate finance and M&A transactions, and corporate governance and compliance counseling for boards, committees and directors of public and private companies and not-for-profit entities. He also leads the Firm's fund practice. For over 40 years, Mr. DeFeo, Jr. has advised public and private corporations, partnerships, limited liability companies, real estate investment trusts (REITs), private equity firms and funds, venture and hedge funds, private investment funds and other clients in U.S. and cross-border joint ventures and strategic alliances, mergers and acquisitions, consolidations, asset and stock acquisitions and dispositions, all aspects of private equity and venture capital fund transactions and public and private offerings of debt and equity securities, including initial public offerings and shelf-registered offerings, Rule 144A high-yield debt offerings and exchange listings.
Mr. Singer is a trusted advisor to public and private companies, offering strategic counsel on complex corporate finance and commercial transactions to help clients structure, negotiate, and manage risk. He represents lenders, borrowers, administrative agents, private equity firms, and their portfolio companies in sophisticated debt and equity financings. Mr. Singer also advises clients on mergers, acquisitions, divestitures, and other strategic transactions, aligning legal strategy with their broader business goals.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Wednesday, October 21, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Setting the scenario: Why deferred purchase price matters (not merely definitions)
II. Matching the structure to the problem
III. Real-world analysis and market trends for contingent and deferred consideration structures
A. Earn-outs
B. Subordinated seller notes
C. Rollover equity
D. Escrows and holdbacks
E. Contingent value rights and other creative solutions
IV. Choosing the right tool and metrics (revenue, earnings, EBITDA, and combinations)
V. Negotiation strategies
VI. Capital and funding spotlight: Examining senior lender financing, intercreditor arrangements, and bankruptcy implications
VII. Indemnification
VIII. Drafting tips
IX. Post-closing provisions and performance/efforts standards
X. Litigation traps, deal impasses, and lessons learned from recent cases
XI. Enforcement strategies: What to do when conditions change post-closing?
The panel will review these and other key issues:
- How to evaluate the principal forms of deferred and contingent purchase price used in modern M&A transactions
- What should practitioners consider when comparing the business and legal advantages of earn-outs, seller notes, rollover equity, escrows, holdbacks, and other consideration structures?
- Which key drafting solutions will reduce post-closing disputes and litigation risk most?
- How do senior debt financing, subordination agreements, and intercreditor arrangements impact seller financing?
- What do you do when bankruptcy, insolvency, and enforcement issues materially affect deferred consideration?
- Which negotiation strategies will be most effective to bridge valuation gaps while also appropriately allocating post-closing risk?
Related Courses
Deferred Purchase Price in M&A: Structuring Earn-Outs, Seller Notes, and Other Creative Transaction Solutions
Wednesday, October 21, 2026
1:00 PM ET/10:00 AM PT
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