MAC Clauses and Indemnification Provisions in M&A Deals: Recent Trends in Negotiating and Drafting
Implications of Recent Deal Litigation on the Negotiation of MAC Clauses
Recording of a 90-minute premium CLE webinar with Q&A
This CLE webinar will provide guidance to deal counsel for negotiating and drafting material adverse change (MAC) clauses and the key indemnification provisions in M&A deals. Panel discussion will include industry trends in deal negotiation and the impact of the recent Akorn decision.
- Negotiating MAC clauses
- Be specific about conditions constituting a MAC
- Use broadly written MAC clauses only as “backstop” protection
- Watch language construction
- Include broad language to cover unknown risks
- Buyer should attempt to limit specific MAC exceptions seller proposes
- Implications of Akorn, Inc. v. Fresenius Kabi AG
- Negotiating indemnification provisions in private company M&A transactions
- Materiality scrapes
- Survival periods
- Baskets, caps, escrow provisions
- Consequential damage waivers
- Anti-sandbagging clauses
- Recent developments in Delaware statute of limitations
The panel will review these and other key issues:
- How has recent deal litigation impacted the negotiation of MAC clauses?
- How can counsel for buyers and sellers best mitigate risk when drafting and negotiating MAC clauses?
- What are the current trends to consider when drafting and negotiating indemnification provisions?
Kenneth W. Clingen
Clingen Callow & McLean
Mr. Clingen chairs the firm’s business counseling department. He is general counsel to a number of privately... | Read More
Mr. Clingen chairs the firm’s business counseling department. He is general counsel to a number of privately owned businesses across a variety of industries and also represents high net worth individuals and family offices. He counsels clients in starting new business ventures, operating their ongoing business enterprises and preparing business succession plans for business owners.Close
Gregory A. Schernecke
Mr. Schernecke focuses his practice on corporate finance; mergers and acquisitions, with a particular emphasis on... | Read More
Mr. Schernecke focuses his practice on corporate finance; mergers and acquisitions, with a particular emphasis on private equity; and general corporate matters, including public company reporting and governance issues.Close