Break-Up Fees Provisions

Summary

These clauses contain break-up fee provisions that cover both break-up fees payable by the seller as well as reverse break-up fees payable by the buyer. These clauses include practical guidance, drafting notes, and alternate clauses. What are Break-Up Fees? A break-up fee is a fee paid by the seller in the event the transaction does not close due to the seller's termination of the agreement for a more attractive deal or other specified circumstances. A break-up fee provision is a type of a deal protection mechanism and, if structured properly, incentivizes the seller to close the transaction while providing the buyer with some degree of recovery of expenses, investment of time, and opportunity cost if the transaction does not close. Break-up fee provisions, however, have to be evaluated in the context of the fiduciary duties of the seller's board which, in Delaware under Revlon duties, require the board to maximize shareholder value in a change of control transaction. Delaware courts ...