Back stop date

… also called Drop dead date: the last day on which all conditions should be fulfilled. Best practice rule 11 – this blog post – deals with this simple advice.

11)    Include a deadline before which all conditions must be satisfied.

A deadline is a relatively strong incentive for a party to have the conditions satisfied as soon as reasonably practicable. Obviously, a deadline gives a certainty about the rights and obligations of both parties. Such deadline is usually called a ‘back stop date’ or ‘drop dead date’.

It is recommended to provide for a deadline, which is realistic in view of what must happen or can happen during the period that not all conditions are satisfied. For example, it does not make sense to agree on a back stop date which precedes the day on which a competition authority would be required to take a decision on the proposed merger transaction (where a positive decision or the lapse of a statutory period to take the decision implies the satisfaction of a condition). But obviously, if the back stop date does cover such period, the non-satisfaction of the condition would be caused by a failure to submit the merger filing timely.

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