Best Efforts and Commercially Reasonable Efforts in M&A Agreements: Drafting and Interpretation Challenges
Lessons From Case Law for Interpreting Efforts Provisions and Avoiding Enforceability Pitfalls
Recording of a 90-minute CLE webinar with Q&A
This CLE webinar will provide practical guidance to M&A counsel for drafting enforceable best efforts and commercially reasonable efforts clauses in M&A agreements, including a discussion of how courts’ interpretations of the provisions have varied from state to state.
- Examples of common usage of best efforts, reasonable best efforts and commercially reasonable efforts clauses in M&A agreements
- Case law guidance
- What is required of parties to satisfy “best efforts,” "reasonable best efforts" and "commercially reasonable efforts" in M&A deals?
- How are courts applying the implied covenant of good faith and fair dealing when interpreting efforts provisions?
- Best practices for drafting efforts provisions in M&A agreements
The panel will review these and other key issues:
- How are “best efforts,” “reasonable best efforts” and “commercially reasonable efforts” different?
- What challenges do M&A counsel face surrounding the drafting and enforcement of efforts clauses?
- How can counsel draft efforts provisions in their M&A agreements that clearly reflect the intent of the parties and do not promise too much or too little?
Mark J. Mihanovic
McDermott Will & Emery
Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions... | Read More
Mr. Mihanovic's practice is primarily focused in the areas of corporate finance and mergers and acquisitions involving companies in a broad range of industries. He has substantial experience advising corporate boards of directors and management regarding fiduciary duties (including in connection with potential change in control transactions and consideration of "poison pill" stockholders rights plans) and corporate governance issues. He advises publicly-traded companies and investment banks and other financial advisers with respect to a wide variety of securities law compliance matters.Close
Martin B. Robins
Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual... | Read More
Mr. Robins practices extensively in the general corporate and corporate governance, M&A, finance, intellectual property (including licensing, compliance and DMCA) and information technology/data security areas. He represents public and private clients of all sizes and in all industries ranging from Fortune 50 multinational firms to substantial private companies to start-ups to individual executives. His work encompasses transactions of all sizes and covers a wide array of transactions including business acquisitions, shareholder buy/sell agreements bank and similar financing, software licenses and computer/telecom hardware procurements, joint ventures, equipment and real estate leases, patent licenses, outsourcing and managed service contracts. He also publishes extensively in a number of legal journals and presents at legal conferences.Close
Bradley P. Nelson
Mr. Nelson is a highly experienced trial lawyer and litigator, with a focus on complex business and intellectual... | Read More
Mr. Nelson is a highly experienced trial lawyer and litigator, with a focus on complex business and intellectual property litigation. Over the course of almost 30 years, he has served as lead counsel representing clients in a broad range of business disputes. He is a frequent author and speaker on a broad range of topics, including trial techniques, litigation, and financial and accounting issues facing corporate clients.Close