A new type of defined term related to the pandemic is becoming increasingly prevalent in publicly filed mergers and acquisitions agreements, and is experiencing a noticeable surge this month. Different from “COVID-19 Measures”, which has become a pandemic market standard and typically covers government-mandated measures, the newly popular “COVID-19 Actions” and “COVID-19 Responses” cover actions taken by one or all parties (most typically the target) in response to Covid-19. Overwhelmingly, these terms impose a reasonableness requirement (such as “commercially reasonable” or “reasonably determined to be necessary or prudent”) on actions taken in response to the pandemic.
These “COVID-19 ...