Specific Performance and Reverse Breakup Fees in M&A: Mitigating Risks if a Counterparty Refuses to Close
A live 90-minute premium CLE video webinar with interactive Q&A
This CLE webinar will provide guidance to M&A counsel for negotiating and enforcing remedies when a deal fails to close due to a breach by either party with a focus on specific performance, limitations on recovering monetary damages, and reverse breakup fee provisions. The panel will provide considerations for buyers and sellers, tips for negotiating and structuring these remedy provisions in merger agreements, and strategies for navigating the contractual interplay between specific performance, monetary damage claims, and reverse breakup fees.
Outline
- Overview of specific performance and reverse breakup fee terms
- Seminal Delaware Court of Chancery decisions construing specific performance and reverse breakup fee terms
- Pathway to enforcement of specific performance terms
- Relief available to buyers
- Relief available to sellers
- Irreparable harm--no adequate remedy at law
- Availability of expedited review in Delaware vs. other courts
- Reverse breakup fees
- Conditional specific performance and reverse breakup fees
- Reverse breakup fee remedies
- Practical considerations and key takeaways
Benefits
The panel will address these and other key issues:
- What are common specific performance and reverse breakup fee terms?
- What is the interplay between specific performance and reverse breakup fee terms and what are some key drafting strategies and considerations?
- When is specific performance available to buyers and under what circumstances might it be available to sellers?
- Why is Delaware the preferred jurisdiction and venue for M&A disputes?
Faculty
Steven M. Haas
Partner, Co-Head Mergers and Acquisitions Team
Hunton Andrews Kurth
Mr. Haas regularly counsels publicly traded corporations, privately-held businesses and boards of directors on... | Read More
Mr. Haas regularly counsels publicly traded corporations, privately-held businesses and boards of directors on corporate governance issues, including shareholder meeting disputes, internal investigations and fiduciary duty litigation. He authored chapters on stockholder rights and director duties in the treatise Corporate Governance: Law and Practice and is a speaker on corporate governance and M&A issues.
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James Jian Hu
Partner
Cleary Gottlieb Steen & Hamilton
Mr. Hu’s practice focuses on public and private merger and acquisition transactions. He regularly advises... | Read More
Mr. Hu’s practice focuses on public and private merger and acquisition transactions. He regularly advises investors, boards of directors, senior executives, and founders on strategic, legal, and business matters in all types of M&A transactions, including leveraged buyouts, public company mergers, corporate carve-outs, minority investments, and distressed situations. Mr. Hu advises on transactions across the industry spectrum, with substantial experience in the technology, life science and health care, and consumer space. He is an adjunct professor at Cornell Law School and Cornell Tech.
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