DESCRIPTION
MAC Clauses in Business Transactions
Material Adverse Change (MAC) clauses are common in most businesstransactions. These clauses allocate among the parties the risk of a MAC 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 want maximum flexibility and will argue that anything that makes the transaction unattractive should constitute a MAC. Between those two opposing views are a host of narrow and technical but 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.
- Drafting “Material Adverse Change” provisions 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
Speaker:
Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property. He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities. Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.
Disclaimer: All views or opinions expressed by any presenter during the course of this CLE is that of the presenter alone and not an opinion of the Oklahoma Bar Association, the employers, or affiliates of the presenters unless specifically stated. Additionally, any materials, including the legal research, are the product of the individual contributor, not the Oklahoma Bar Association. The Oklahoma Bar Association makes no warranty, express or implied, relating to the accuracy or content of these materials.