M&A Boot Camp booklet 2023 - Flipbook - Page 67
Pre-Closing Covenants
What special provisions might the target attempt to negotiate in an
antitrust-sensitive deal?
– “reasonable best efforts” or “best efforts” standard instead of “commercially
reasonable efforts”
– “hell-or-high-water” obligation of the buyer (= effectively a guarantee by the
buyer that antitrust clearance will be obtained)
– specific covenant of the buyer to agree to divest certain assets, if required by
antitrust authorities
– specific covenant of the buyer to litigate against antitrust authorities
– reverse break-up fee payable by the buyer to the target if the deal falls apart as
a result of an antitrust challenge
Hogan Lovells US LLP
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