b'Mergers & Acquisitions | Ordinary Course of Business Covenantsof business: how a party routinely conducted itsfor the effects of the pandemic on ordinary course business in the past and how other companies withcovenants. Recent examples of ordinary course similar businesses routinely conduct their business.covenants in insurance industry M&A agreements Where the consistent with past practice qualifier iscontain exceptions for actions taken in response to used, however, a Delaware courts review will beCOVID-19 (typically subject to such actions being limited to the partys own routine conduct of itsreasonably necessary) and actions taken to comply business and the court will not look to how anywith shelter in place, social distancing and other similar business is conducted by third parties. orders and guidelines issued by governmental authorities. While parties cannot predict all of the Insurance Industry Transactions potential challenges from the pandemic that will The acquisition agreement at issue in the case wasconfront them during the pendency of a transaction, executed before the outbreak of the COVID-19the recent trends in M&A agreements demonstrate pandemic and does not include any provisionsthat sellers are seeking to retain their ability to make specifically addressing the effects of the pandemic.changes to the conduct of their businesses to Publicly disclosed insurance industry M&A agree- respond promptly to the effects of the pandemic and ments entered into since the onset of the pandemicreduce the likelihood of future disputes over their reflect provisions in line with recent trends that havecompliance with their ordinary course covenants. gemerged in M&A agreements generally to account 28 GLOBAL INSURANCE INDUSTRY|YEAR IN REVIEW 2020'