In addition, depending on the outcome of the negotiations between the parties, the MAC clauses may include, in addition to the aforementioned general clauses, a reference to lists of other specific events of an exceptional and unpredictable nature, For example, exclusions (which are not explicitly considered triggers of a MAC) in the LinkedIn agreement (S.4-5 of the merger agreement) include: As one can imagine, during the 2007/8 financial crisis, many acquirers attempted to evade the MAC clause of transactions where the objectives were merging. These attempts were largely rejected by the courts, with Hexion`s acquisition of Huntsman being a good example. Hexion attempted to withdraw from the agreement by claiming a significant negative change. The complaint did not withstand the court and Hexion was forced to properly compensate Huntsman. Ultimately, GNP parties that relate to target companies with their head office and/or dominant or exclusive activities in Italy and/or other countries affected by COVID-19 must carefully review the relevant contractual arrangements and negotiate with their counterparts to assess the potential impact of the epidemic on the acquisition in question. In the absence of recent and clear case law in favour of the legitimate applicability of the MAC clause, courts or arbitration tribunals that decide disputes will necessarily take into account the terms of the specific case, including arbitration tribunals that rule on disputes. In a situation of uncertainty of interpretation, we cannot exclude that the application of the MAC clause significantly increases the possibility of litigation between the parties to a CSG and that, therefore, the possibility of imposing it should be considered very carefully. Impact – the judge`s assessment of the economic situation is interesting in the context of the recent Supreme Court decision in Arnold v Britton – Ors  UKSC 36 (in last week`s weekly ATM update). In Arnold/Britton, the Tribunal highlighted a number of factors to be considered in the interpretation of a contract. He noted that the invocation of common sense and the circumstances of trade should not be used to underestimate the importance of the language used. The Ipsos/Dentsu decision makes it clear that the language used to describe a DMA can be interpreted in a restrictive manner, focusing on the need to clarify the scope of the provision for those who will, in the future, draft similar clauses. In the Italian legal system (as in other countries), there is no legal definition of the MAC.
Therefore, the content of the MAC clause is left to the contractual autonomy of the parties and depends on the outcome of the negotiations between them. In our guide to mergers and acquisitions, we saw that microsoft, when it acquired LinkedIn on June 13, 2016, contained a split tax of $725 million $US linked to Microsoft if LinkedIn changed its mind before the closing date. (c) In Hexion v. Huntsman, a Delaware court found that EBITDA, not earnings per share, was the right measure for a cash acquisition. Poor quarterly results, with a 3% drop in EBITDA, were seen as a hiccup rather than a sign of long-term change. The Tribunal found that only 25% of Huntsman`s EBITDA suffered significantly after the signing of the merger agreement, which was due only to the company`s cyclical activities. In questo articolo, intendiamo analizzare il possibile effetto dell`epidemia da COVID-19 sulle operazioni di fusione e acquisizione, con specifico riferimento all`azionability delle clausole, di origin Anglosassone, di c.d.