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ARTICLE · 14 JANUARY 2019

The Big MAC: Affirmed

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As a result, the MAC definition is often hotly contested notwithstanding the fact that prior to Akorn nobody was successful in walking away on the basis that a MAC occurred.

CanadaCorporate/Commercial Law
Gesta Abols
Gesta Abols
Bradley Freelan
Bradley Freelan
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Days ago, the Supreme Court of the State of Delaware issued an order succinctly affirming the Delaware Court of Chancery's judgment from October this year that found Fresenius Kabi AG had no obligation to close its proposed merger with Akorn, Inc. and Fresenius properly terminated the merger agreement on April 22, 2018 largely as a result of Akorn having suffered a material adverse effect (MAC).

The Court of Chancery's decision is notable for a number of reasons, but the main attraction is the fact that the decision is generally understood to represent the first time a Delaware court has allowed a buyer to walk away from a public company merger on the basis of a contractual MAC provision.

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