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Editor's Note: This is a sample definition of the term “Covid-19 Measures,” based on an emerging M&A drafting trend, that may be included in mergers and acquisitions agreements such as merger agreements, stock purchase agreements, business combination agreements, asset purchase agreements, and securities purchase agreements.
Access our Transactional Precedent Database for uses of the term “Covid-19 Measures” in publicly filed M&A agreements.
“Covid-19 Measures” shall mean any quarantine, “shelter in place,” “stay-at-home,” workforce reduction, social distancing, shut down, closure, sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any industry group or any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to Covid-19, including the CARES Act and Families First Coronavirus Response Act.
Comment: This definition is designed to simplify references to the Covid-19 pandemic and related measures that may impact parties to an M&A agreement before, during, or after closing. There are a variety of provisions in an M&A agreement that could potentially be qualified or limited by reference to this defined term, e.g., representations & warranties, pre-closing covenants, etc.
Additionally, this definition may in turn be referenced in other definitions of terms such as “Law.” Many provisions in M&A agreements reference, are subject to, or are limited by “applicable Law” (“Law” itself typically being a concept that is defined in these agreements) including pre- and post-closing covenants of the parties. Parties may explicitly include “Covid-19 Measures” within the scope of “applicable Law” by including it in the definition of Law itself and/or by calling it out in a parenthetical wherever the phrase “applicable Law” appears—e.g., “Subject to applicable Law (including any Covid-19 Measures).”
Value/Risk Analysis: The value of including a definition of Covid-19 Measures is that it can be easily referred to throughout an M&A agreement. The definition of this term should be broad enough to cover situations that have arisen or are likely to arise and impact the parties in the transaction at hand.
Affected Clauses: Certain defined terms, such as Law and Covid-19, may need to be adjusted or added to the Definitions section of the agreement as a result of the inclusion of this type of definition.
Other potentially impacted clauses may include: Conduct of Business, Access to Information, Material Adverse Effect, and Absence of Changes.