Material Adverse Change Clauses in M&A Deals: Current Enforcement Trends
Lessons on the Use and Interpretation of MAC Clauses From Hexion v. Huntsman and Other Recent Delaware Decisions
Economic crisis jeopardizes merger and acquisition deals
Recording of a 90-minute CLE webinar with Q&A
This seminar will discuss current trends amid the economic crisis that surround the use and interpretation of material adverse change (MAC) clauses. The panel will offer their strategies for negotiating and litigating MAC clauses in merger agreements.
- MAC clauses — current trends
- Hexion Specialty Chemicals v. Huntsman Corporation (September 2008)
- Recent settlements
- Pending lawsuits
- Best practices for negotiating MAC clauses
- Mitigating risks
- Be specific about conditions constituting 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
- Resolving conflicting positions
- Mitigating risks
- Dynamics of preparing and negotiating MAC clauses
- Expectations of MAC clauses
- When and how to use MAC clauses effectively
- Interrelationship of MAC clause with other clauses in merger agreement
The panel will review these and other key questions:
- How has the recent trend of lawsuits impacted the negotiation of MAC clauses?
- What is the current state of the law regarding MAC clauses?
- What insights and guidance does Hexion offer on MAC clauses in merger agreements?
- How can counsel for buyers and sellers best mitigate risk when drafting and negotiating MAC clauses?
Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.
Clifford E. Neimeth
He has over 22 years of experience structuring, managing, negotiating and executing merger and acquisition... | Read More
He has over 22 years of experience structuring, managing, negotiating and executing merger and acquisition transactions. His clients include Fortune 500 acquirers and sellers. He is a frequent speaker on M&A strategies.Close
G. Thomas Stromberg
He concentrates in mergers and acquisitions, private equity, joint ventures, corporate finance, and corporate... | Read More
He concentrates in mergers and acquisitions, private equity, joint ventures, corporate finance, and corporate governance. He is a frequent speaker on various topics, including drafting techniques.Close
Herbert F. Kozlov
His practice focuses on corporate law, including public and private mergers, acquisitions and divestitures. He also has... | Read More
His practice focuses on corporate law, including public and private mergers, acquisitions and divestitures. He also has extensive experience in corporate disputes and litigation; defending shareholder class action and derivative claims; conducting internal corporate investigations; and handling disputes among shareholders of closely held companies.Close
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