Contract Terms, Pharmaceutical Industry, Merger Agreements

Delaware Court Awards More Than $180 Million for Breach of Commercially Reasonable Efforts Obligation in Drug Development...

Goodwin on 6/19/2025

On June 11, 2025, the Delaware Court of Chancery found Alexion Pharmaceuticals liable for more than $180 million in damages to former stockholders of Syntimmune, Inc., following the Court’s September 2024 ruling that Alexion...more

Delaware Court of Chancery Clarifies “Commercially Reasonable Efforts” in Earn-Out Provisions

Cadwalader, Wickersham & Taft LLP on 6/13/2024

On April 30, 2024, in Himawan, et al. v. Cephalon, Inc., et al., the Delaware Court of Chancery held that the defendant acquiror complied with its contractual obligations to use commercially reasonable efforts to achieve...more

Sustained or Transitory? Delaware Court of Chancery Finds No MAE Absent Proof of Durationally Significant Effect on Business

Herbert Smith Freehills Kramer on 8/3/2021

Prior to the Delaware Court of Chancery’s opinion in Akorn, Inc. v. Fresenius Kabi AG, C.A. No. 2018-0300-JTL, 2018 WL 4719347 (Del. Ch. Oct. 1, 2018), aff’d 198 A.3d 724 (Del. 2018), no Delaware court had found the existence...more

The Delaware Court of Chancery Rejects Termination of Merger Agreement Based on Material Adverse Effect

Cadwalader, Wickersham & Taft LLP on 1/8/2020

In Channel Medsystems, Inc. v. Boston Scientific Corporation, the Delaware Court of Chancery rejected an attempt by Boston Scientific to terminate and thus avoid consummating a merger agreement with Channel on the grounds...more

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

Fenwick & West LLP on 10/25/2018

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

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

Dorsey & Whitney LLP on 10/15/2018

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

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

Foley & Lardner LLP on 10/12/2018

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

Chancery Describes Commercially Reasonable Efforts

Stinson - Corporate & Securities Law Blog on 10/12/2018

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

Delaware Judge Finds Elusive MAC—Does It Change Anything?

Bennett Jones LLP on 10/10/2018

Purchasers of businesses often want an "escape hatch" prior to closing if the target business suffers a "material adverse change" (or a "material adverse effect"). Historically, based on court decisions primarily out of the...more

M&A Update - Delaware Court Of Chancery Makes Notable MAE Finding, Allows Fresenius To Terminate Proposed US$4.3 Billion...

Hogan Lovells on 10/10/2018

On October 1, 2018, the Delaware Court of Chancery issued a post-trial opinion by Vice Chancellor Laster in which the court determined that Fresenius Kabi AG validly terminated its proposed US$4.3 billion acquisition of...more

Delaware Court Of Chancery Rules For The First Time That MAE Justifies Termination Of Deal

A&O Shearman on 10/9/2018

In a first-of-its-kind ruling, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ruled post-trial that Fresenius SE & Co. KGaA (“Fresenius”) properly terminated its $4.3 billion agreement to acquire Akorn,...more

Delaware Court of Chancery Finds a Material Adverse Effect and Permits Termination of Merger Agreement

Wilson Sonsini Goodrich & Rosati on 10/5/2018

In a 246-page post-trial decision issued this week, the Delaware Court of Chancery ruled that a buyer could terminate a $4.75 billion public company acquisition because of material adverse effects that had occurred at the...more

Contract Terms › Pharmaceutical Industry › Merger Agreements

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