MAC Clauses and Indemnification Provisions in M&A Deals
Structuring Terms to Minimize Transaction Risks and Post-Closing Disputes
Recording of a 90-minute premium CLE webinar with Q&A
This CLE course will provide guidance to buyers' and sellers' counsel for negotiating material adverse change (MAC) clauses and indemnification provisions in M&A deals. The panel will outline approaches to benefit and protect buyers and sellers and reduce post-closing disputes.
Negotiating MAC clauses
- Be specific about conditions constituting a MAC
- Use broadly written MAC clauses only as “backstop” protection
- Mention information relied on, such as business or financial projections
- Watch language construction
- Buyer should include potential adverse events outside of seller’s control
- Include broad language to cover unknown risks
- Seller should attempt to limit specific carve-outs buyer proposes
- Seller might require that it have knowledge of MAC for clause to be enforceable
Negotiating indemnification provisions
- Consequential and incidental damages
- Fraud exclusion
- Purchase price adjustment and double-dipping
- Defense of third-party claims
- Evaluating and addressing creditworthiness of indemnitors
Financial analysis applicable to determination of a MAC—Delaware courts criteria
- Dramatic downturn
- Durational significance
- Unknown to the buyer
The panel will review these and other key questions:
- How has the latest trend of lawsuits impacted the negotiation of MAC clauses?
- What are the most commonly disputed issues in M&A indemnity and what are some effective strategies for resolving them?
- How can counsel for buyers and sellers best mitigate risk when drafting and negotiating MAC clauses and indemnification provisions?
Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.
John C. Partigan
Mr. Partigan concentrates his practice in federal securities law matters and mergers and acquisitions. His mergers... | Read More
Mr. Partigan concentrates his practice in federal securities law matters and mergers and acquisitions. His mergers and acquisitions practice includes public and privately negotiated acquisitions and divestitures in a variety of industries. His securities practice includes representing issuers in connection with primary and secondary public offerings of debt and equity securities.Close
Jeff J. Litvak
Senior Managing Director—Forensic Litigation
Mr. Litvak specializes in accounting and valuation matters, assessment of economic damages, analysis of lost... | Read More
Mr. Litvak specializes in accounting and valuation matters, assessment of economic damages, analysis of lost profits, and merger and acquisition damages. He has provided expert opinions on matters involving post-acquisition disputes (including the Valassis v. ADVO case), breach of contract, damages, employee termination, lender liability, healthcare fraud and abuse, antitrust and lost profits.Close