An Unheard-of Result: Specific Performance of Regulatory Approval Covenant in a M&A Transaction

John is joined by Christopher D. Kercher, a partner in Quinn Emanuel’s New York office. They discuss the recent win Chris’s team achieved in a Delaware Chancery Court trial involving a high-stakes case involving Desktop Metal and Nano Dimension. The dispute centered around a merger agreement that included a "hell or high water" clause obligating Nano, the buyer, to do whatever was necessary to secure regulatory approval from the Committee on Foreign Investment in the United States (CFIUS), with a narrow exception if required actions would result in a loss of 10% or more of the company’s revenue. After the agreement was signed, a hedge fund replaced Nano’s board and management with personnel opposed to the deal. The new board then sought ways to back out. Although CFIUS approval was near, Nano’s new leadership began stalling, making endless counterproposals, delaying communications, and attempting to trigger the revenue-loss exception by claiming that a requirement to maintain a German facility would exceed the 10% threshold. While the buyer tried to appear compliant with the contract, the evidence—particularly a 38-day gap in responding to CFIUS—revealed a pattern of bad faith and delay. Desktop Metal, struggling financially, was meticulous in adhering to operating covenants, collecting receivables and consulting Nano on business decisions, knowing any misstep could be weaponized to kill the deal. Despite pressure, the seller never received a renegotiation offer from Nano. At trial, the team presented the buyer’s conduct as a strategic “slow-walk.” The court ultimately agreed, affirming that a hell or high water clause must be honored in both letter and spirit. The case serves as a reminder that efforts to evade deal obligations—particularly those cloaked in delay or technicalities—will be exposed under judicial scrutiny, and that Delaware courts remain committed to upholding contractual integrity in complex M&A transactions. Podcast Link: Law-disrupted.fm Host: John B. Quinn Producer: Alexis Hyde Music and Editing by: Alexander Rossi