News & Analysis as of

Merger Agreements

Morris James LLP

Case Spotlight: Akorn, Inc. v. Fresenius Kabi AG

by Morris James LLP on

Case Spotlight: Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. May 22, 2018) (Laster, V.C.) - Plaintiff brought this suit to compel specific performance of a merger agreement with defendants. ...more

Pepper Hamilton LLP

Buying an Existing Construction Operation? Do Your Due Diligence

by Pepper Hamilton LLP on

While mergers and acquisitions have been a hot market for some time in other industries, in recent years, venture capitalist and private equity firms have been actively involved in the acquisition of construction operations...more

Pepper Hamilton LLP

Delaware Supreme Court Affirms Historic Material Adverse Effect Ruling

by Pepper Hamilton LLP on

On December 7, 2018, the Delaware Supreme Court issued an order affirming the judgment of the Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018). ...more

Pepper Hamilton LLP

Resolving M&A Price Disputes: Experts or Arbitrators?

by Pepper Hamilton LLP on

Merger agreements typically include post-closing purchase price adjustment provisions. A net working capital, or NWC, adjustment, for example, increases or decreases the purchase price post-closing based on a comparison of...more

Skadden, Arps, Slate, Meagher & Flom LLP

Inside the Courts – An Update From Skadden Securities Litigators - December 2018

by Skadden, Arps, Slate, Meagher & Flom LLP on

This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between September 2018 and October 2018. ...more

Robinson & Cole LLP

The Akorn Case – New Development in Delaware for Termination by Material Adverse Effect

by Robinson & Cole LLP on

In Akorn, Inc. v. Fresenius Kabi AG, C.A., No. 2018-0300-JTL Del. Ch. October 1, 2018, the Delaware Court of Chancery determined that the buyer (Fresenius) had validly terminated a merger agreement because (i) the seller’s...more

Skadden, Arps, Slate, Meagher & Flom LLP

‘Reasonable Efforts’ Clauses in Delaware: One Size Fits All, Unless…

by Skadden, Arps, Slate, Meagher & Flom LLP on

Akorn Found - In Vice Chancellor J. Travis Laster’s recent opinion in Akorn, Inc. v. Fresenius Kabi AG, he discusses (on pages 212-216) the general subject of “efforts” clauses in contracts governed by Delaware law. The...more

Goulston & Storrs PC

Trends in M&A Provisions: Indemnity Caps

by Goulston & Storrs PC on

In merger and acquisition (“M&A”) transactions, the definitive purchase agreement (whether asset purchase agreement, stock purchase agreement, or merger agreement) typically contains representations and warranties made by the...more

Weil, Gotshal & Manges LLP

The Material Adverse Effect Landscape after Akorn v. Fresenius

by Weil, Gotshal & Manges LLP on

The Court of Chancery’s October 1, 2018 opinion in Akorn, Inc. v. Fresenius Kabi AG1 marked the first time in Delaware history that the Court of Chancery confirmed the existence of a Material Adverse Effect (“MAE”) and...more

Burr & Forman

Health Care E-Note - October 2018

by Burr & Forman on

On July 23, 2018 the United States House of Representatives passed HR 1676 approving grants to improve educational programs, research and workforce development in palliative medicine. Please see full Enote below for more...more

Cooley LLP

Blog: MAEjor Ruling: Delaware Court of Chancery Finds Target Suffers Material Adverse Effect and Acquirer Could Back Out of...

by Cooley LLP on

M&A practitioners have long advised boards of directors that the Delaware courts have never found that the events or circumstances in a particular transaction met the contractual standard of having a material adverse effect...more

Goodwin

A First: Delaware Court of Chancery Holds That Merger Target Suffered Material Adverse Effect

by Goodwin on

On October 1, 2018, the Delaware Court of Chancery, in Akorn, Inc. v. Fresenius Kabi AG, et al., held for the first time that a target company had suffered a material adverse effect (MAE) sufficient for an acquiror to validly...more

Cadwalader, Wickersham & Taft LLP

M&A Update: Akorn Falls Far from the Tree: Delaware Chancery Court Finds a “Material Adverse Effect” for the First Time in Akorn,...

by Cadwalader, Wickersham & Taft LLP on

On October 1, 2018, the Delaware Court of Chancery found in Akorn, Inc. v. Fresenius Kabi AG, et al. that Fresenius was entitled to terminate its merger agreement with Akorn. ...more

Cooley LLP

Blog: US vs UK Private M&A – Two Agreements Divided by a Common Language?

by Cooley LLP on

The two legal systems that most often govern cross-border private M&A transactions are US (most commonly Delaware) law and English law. To the untrained eye, acquisition and sale agreements governed under either system may...more

Fenwick & West LLP

Akorn v. Fresenius: Important Practical Lessons from First-Ever Material Adverse Effect

by Fenwick & West LLP on

On October 1, in Akorn v. Fresenius Kabi, the Delaware Court of Chancery for the first time found that a material adverse effect — or MAE — had occurred in a merger transaction, which, combined with other breaches of the...more

Skadden, Arps, Slate, Meagher & Flom LLP

Analyzing Akorn: Delaware’s First M&A Termination Under Material Adverse Effect

by Skadden, Arps, Slate, Meagher & Flom LLP on

On October 1, 2018, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued a 246-page post-trial opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL, that denied the seller’s (Akorn) request...more

Kilpatrick Townsend & Stockton LLP

DE Chancery Court Finds Material Adverse Effect Allowed Fresenius to Terminate Merger Agreement with Akorn

by Kilpatrick Townsend & Stockton LLP on

Summary: - A perfect storm of facts in Akorn, Inc. v. Fresenius Kabi AG et al. allowed the Delaware Chancery Court to conclude that Fresenius could properly terminate its obligations to acquire Akorn without liability,...more

Skadden, Arps, Slate, Meagher & Flom LLP

Planning for Merger Reviews and Antitrust Inquiries in Case of a 'No-Deal' Brexit

by Skadden, Arps, Slate, Meagher & Flom LLP on

As the U.K.’s March 29, 2019, exit date from the European Union approaches, companies involved in merger reviews or antitrust investigations should pre-emptively address the risk of a “no-deal” Brexit....more

Weil, Gotshal & Manges LLP

A Delaware Case Has Finally Determined That There is Such a Thing as a “Material Adverse Effect”

by Weil, Gotshal & Manges LLP on

More than 17 years-ago, in In re IBP, Inc. Shareholders Litigation, then Vice Chancellor Leo Strine—now Chief Justice of the Delaware Supreme Court—required Tyson Foods to complete its agreed-upon merger with IBP. He ordered...more

Dorsey & Whitney LLP

MAE is MIA No Longer: Delaware Court Upholds Use of “Material Adverse Event” Clause for the First Time

by Dorsey & Whitney LLP on

In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Chancery Court held that Fresenius, a German pharmaceutical company, was justified in invoking a “material adverse event” (MAE) clause to terminate its $4.8 billion merger...more

Foley & Lardner LLP

Akorn v. Fresnius Kabi: Delaware Court Provides Guidance on What Constitutes a Material Adverse Event

by Foley & Lardner LLP on

A Delaware Chancery Court has allowed a buyer to cancel a deal based on a material adverse effect. The decision is believed to be the first of its kind in Delaware. In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court...more

Stinson Leonard Street - Dodd-Frank and the...

Chancery Describes Commercially Reasonable Efforts

by Stinson Leonard Street - Dodd-Frank and the... on

Akorn, Inc., v. Fresenius Kabi AG et al will undoubtedly become known as the first case where a Delaware court found a material adverse effect, or MAC (often referred to as a material adverse effect, or MAE), to exist....more

K&L Gates LLP

Delaware Chancery Court Makes Groundbreaking “Material Adverse Effect” Finding Allowing Buyer to Terminate Merger Agreement

by K&L Gates LLP on

In a landmark decision, a Delaware court has, for what is widely believed to be the first time ever, found that a material adverse effect actually occurred in an acquisition transaction, giving the buyer a right to terminate...more

White & Case LLP

Delaware Chancery Court Finds Material Adverse Effect Permitting Buyer to Walk Away from Merger Agreement

by White & Case LLP on

In a first-of-its-kind decision, the Delaware Chancery Court ruled that Fresenius Kabi AG was not required to close its $4.3 billion merger agreement with Akorn, Inc. because, after signing, Akorn suffered a Material Adverse...more

Dechert LLP

Recent Delaware Case Makes First Finding of "Material Adverse Effect": Key Takeaways

by Dechert LLP on

The recent decision of the Delaware Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG et. al is the first time a Delaware court has found a material adverse effect in the M&A context, and reinforces current Delaware law...more

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