A Collab9, LLC v. In Advance Techs. Sales, LLC, a seller argued that the implied duty of good faith and fair trade required the buyer to maximize a provision earnout in an asset purchase agreement (APA). The seller asserted that the buyer breached the duty of good faith and fair trade by ”providing financial documents in a manner that renders inapplicable the accurate determination of the correct amounts of earn-out payments; the creation of a dummy unit to move revenue from [their] books; and the renewal of certain contracts or the transfer of sales or accounts as a means of minimizing adjusted gross margin.   This article discusses the use of earnout provisions in M&A transactions by private companies, as reflected in the ABA studies. This Article does not address these provisions for other types of transactions or for public M&A transactions. The well-documented problem is that the Earnout Bridge, which the parties use to bridge their valuation differences, often gives rise to disputes over whether the Earnout has been reached or why it has not been reached.  Two recent decisions by the Commercial Litigation Division of the Delaware Superior Court show how careful wording influences the resulting process risk. In an action alleging, among other things, non-compliance with the Earnout contract, the seller invoked a non-tacit breach. Unlike Collab9, the court rejected the buyer`s request to reject some of the seller`s Earnout claims, focusing on the first and third obligations of the Earnout agreement. In Merrit Quarum v.
Mitchell International, Inc., a specific contractual language imposing obligations on the buyer after the conclusion resulted in a different result. It was an Earnout agreement entered into by the parties under a share purchase agreement, which contained three provisions relating to the buyer`s obligations after the conclusion. . . .