“Hell Or High Water” Clauses in Merger & Acquisition Agreements

Quinn Emanuel – In the M&A context, “hell or high water” clauses are often negotiated where obtaining antitrust or regulatory approval is a condition precedent to closing the deal.  Such provisions may require one or both parties to take “all necessary steps” to obtain approvals. In this way, M&A “hell or high water” provisions mandate effort and require actions in furtherance of obtaining regulatory approvals, such as compliance with government demands for information, support for a particular strategy , or participation in litigation over regulatory challenges. But effort does not guarantee a desired outcome—either regulatory approval or a closing.

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