COVID-19 and Executing Contracts at Home, Force Majeure Considerations, and MAE Clauses in M&A Transactions
April 13, 2020
Authored by: Matt Macia
The devastating impact of the Coronavirus (COVID-19) needs no introduction. BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.
In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.
Now that many of us are working from home and social distancing, can we still close deals in the US with signed agreements? Are electronically signed contracts really enforceable? Fortunately, most contracts can be entered into electronically without the need to print the agreement and sign it with a pen. This alert discusses the Uniform Electronic Transactions Act, the Federal Electronic Signatures in Global and National Commerce Act, and advises parties how to use readily available services to create legally enforceable contracts with electronic signatures.
In light of the COVID-19 pandemic, many parties are questioning whether their performance of a contract may be excused under a force majeure clause. Force majeure refers to a contractual defense under which a party may be relieved from liability for non-performance if unforeseeable circumstances beyond the party’s control prevent or delay the party from fulfilling its obligations under a contract. This alert outlines the key questions for a force majeure analysis, analyzes the implications of invoking force majeure, and discusses its interaction with insurance coverage.
Acquisition agreements customarily address risk associated with significant downward changes to the target’s business prior to closing through a variety of provisions, including through the use of the “material adverse effect” or “material adverse change” (“MAE”) representations, qualifiers and conditions. Broadly speaking, MAE provisions are intended to serve as a backstop that protects a buyer from unknown events that could substantially threaten the long-term earning potential of the target and, if triggered, may allow a buyer to terminate the agreement prior to closing. This alert provides an overview of the ways in which MAE provisions may be applied and interpreted in transactions currently under negotiation, in the executory phase and following closing, as COVID-19’s impacts continue to evolve.
Much more to follow…