David A. Cooperstein

A Proposed Postpandemic Framework for Ordinary Course and MAE Provisions in Merger Agreements: Reviewing Recent Market Practice Changes and Addressing Skewed Incentives

This empirical analysis of merger agreements indicates an evolution in market practice since the COVID-19 pandemic toward providing additional flexibility to targets to respond to extraordinary events that may occur pending closing. This Essay argues that relying on the buyer’s providing consent for such responses is inadequate, and proposes a new framework for ordinary course covenants and MAE provisions.