Acquisition agreements specify when a party may walk away and what is payable if it does.
Mutual termination by consent.
Outside date termination where closing has not occurred by a stated date, unavailable to a party whose breach caused the delay. Extensions are commonly built in for regulatory clearance.
Breach termination where the other party’s representations or covenants have failed to a level that would cause a closing condition to fail, subject to a cure period.
Legal impediment termination where a final order prohibits the transaction.
Fiduciary termination in public and some private deals, permitting the target board to accept a superior proposal, subject to matching rights and a fee.
Termination fees. Payable by the target on a fiduciary termination, sized as a percentage of equity value. Reverse termination fees payable by the buyer for financing failure or regulatory failure, frequently larger.
Exclusivity of the fee. Whether the fee is the sole remedy or is cumulative with damages and specific performance is the most consequential drafting point, and ambiguity has repeatedly been litigated.
Effect of termination. Which provisions survive — confidentiality, expenses, publicity, the fee itself, and the governing law and forum clauses.