A cláusula de mudança material adversa (“MAC”) como mecanismo de extinção contratual em operações de aquisição de participação societária

Abstract

This dissertation analyses the application of the material adverse change (MAC) clause as a mechanism for terminating share purchase agreements, based on an analysis of eight publicly available instruments. Starting with an overview of deferred closing M&A transactions, the study looks at the historical origins of the MAC clause and how it has evolved in US courts. Turning to Brazil, it is observed that although the legal system contains provisions addressing relevant supervening changes, M&A transactions require contractual self-regulation to address the matter in a more calibrated and customised manner due to their complexity and the uncertainty that permeates the interim period in deferred closing transactions. For this reason, the research examines the structure of the MAC clause, which can be drafted with varying degrees of specificity and may include inclusions and exceptions ('carve-outs'), analysing its impact on contractual dynamics. It is noted that the application of the clause can create a system of friction between the parties, providing incentives for consensual solutions as an alternative to litigation, which demands high evidentiary costs and is permeated by significant legal uncertainty. Subsequently, the study examines publicly available actual contracts that demonstrate distinct structural variations in Brazilian M&A contractual practice through the use of broader or more generic language or specific parameters regarding events constituting a material adverse change for the purposes of contract termination. Furthermore, the use of the MAC clause in different sections of the contract is examined, as it can be linked to conditions precedent, representations and warranties, and simultaneously to termination provisions. Based on a historical examination of the mechanism and an analysis of Brazilian contracts executed in the context of corporate acquisition transactions, this study addresses the difficulties arising from the adaptation of Anglo-American clauses into domestic law. The aim is to understand the legal nature of the MAC clause and its effectiveness, i.e. how it influences the desired contractual outcomes. The conclusion is that the MAC clause densifies matters relating to supervening events in a contractual context, enabling the parties to convert the criteria set out in Articles 235, 317, 393, 478 and 479 of the Brazilian Civil Code into customisable, verifiable negotiated parameters that allow share purchase agreements to be terminated