In Law360 Expert Analysis, White & Case M&A partner James Hu and associate Hiroyuki Koda, and Chief Legal & Administrative Officer of Odeko, Stephen Mar, examine which factors Delaware courts may consider when determining whether a party to an M&A transaction is entitled to a specific performance remedy.
"Virtually all M&A contracts governed by Delaware law contain specific performance provisions," the authors write. "With some degree of variation, such provisions generally affirm the buyer's and seller's agreement that Delaware courts can force a party to comply with its contractual obligations."
While the first two factors that Delaware courts maintain that a party seeking specific performance must establish are "relatively straightforward in their application, the third factor – balancing of the equities," the authors note, "is less clear-cut."
The piece provides guidance for M&A practitioners seeking these remedies, highlighting key considerations deal makers should be aware of, and "how courts…consider certain facts that may enhance or diminish the likelihood that specific performance remedies will be granted."
See the full Law360 article here.
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