Material Adverse Change (MAC) clauses are common in most business transactions. These clauses allocate among the parties the risk of a materially adverse change occurring between the execution of transactional documents and closing the underlying transaction. Sellers want certainty that a sale or other transaction will close and argue that the MAC clause should be very narrowly drafted. Buyers wanted maximum flexibility and will argue that anything that makes the transaction unattractive should constitute a MAC. Within the bracket of those two opposing views there are a host of narrow and technical but supremely important details that need to be negotiated, details which will determine whether the transaction is successfully closed, efficiently and cost-effectively terminated, or devolves into dispute and litigation. This program will provide you with a practical guide using and drafting MAC clauses in transactions.
Handout Materials will be emailed to you prior to the seminar
1.0 MCLE Credit Hours
• Defining what constitutes a “Material Adverse Change” and carve-outs
• Forms of MACs – closing conditions or representations?
• Practical process of “proving” a MAC occurred, including burden of proof
• What happens to the transaction if a MAC occurred?
• Spotting red flags when drafting MAC clauses and best practices to reduce the risk
Steven O. Weise, Proskauer Rose, LLP – Los Angeles